American University International Law Review
Volume 17 | Issue 1 Article 1
The Third Annual Grotius Lecture: Just War and
Jean Bethke Elshtain
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Elshtain, Jean Bethke. “The Third Annual Grotius Lecture: Just War and Humanitarian Intervention.” American Univeristy
International Law Review 17, no. 1 (2001): 1-25.
THE THIRD ANNUAL GROTIUs LECTURE*
JUST WAR AND HUMANITARIAN
JEAN BETHKE ELSHTAIN*”
I. THE JUST WAR TRADITION ………………………….. 3
I. THE JUST WAR TRADITION AS FRAME FOR ACTION:
SIC E T N O N …………………………………………… 7
III. KEEPING JUST WAR AUGUSTINIAN: WHY
RESTRAINT BEGINS AT HOME …………………..
The just war tradition1 is a theory of comparative justice applied to
considerations of war and intervention. In order to better grapple
with its complexities and the characteristic form of moral reasoning
that enters into the just war tradition, it is important to get a grip on
what this centuries-old, ongoing revised tradition consists of and the
ways in which it contests the terrain of war/peace questions with the
* Editor’s Note: The following is a revised version of a lecture presented at the
American Society of International Law’s (“ASIL”) 95th Annual Meeting on April
4-7, 2001. The Grotius Lecture Series is co-sponsored by the American University
Washington College of Law, the ASIL, and the International Legal Studies Program.
The purpose of the Grotius Lecture Series is to open the ASIL forum to distinguished
scholars for discussion about new and important voices that might not
be heard in international law and to create expanded space and opportunities to explore
the intellectual underpinnings of international law and the issues of our time.
** Laura Spelman Rockefeller Professor of Social and Political Ethics, University
1. See Alex Moseley, Just War Theor”, THE INTERNET ENCYCLOPEDIA OF
PHILOSOPHY, at http://-vwv.utm.edu/research/iep/j/justwar.htm
(last visited Sept.
4, 2001) (defining just war tradition as the historical body of agreements or regulations
mutually created by similar enemies for warfare throughout history). The Geneva
or Hague conventions are examples of such regulations concerning warfare.
AM. U. INT’L L. REV.
alternative traditions of realpolitik, 2 on one end of a continuum, and
pacifism3 on the other. Approaching humanitarian intervention
through a just war lens means that such interventions, or their possibility,
must be subjected to intense scrutiny and cannot be played out
simply by appealing to compassion or to doing the ‘right thing.’ The
just war tradition acknowledges the tragedy of situations in which
there may be a ‘right thing’ to do on some absolute standard of justice,
but no prudent or decent way to do it.4
The structure of this essay begins with the basics of the just-war
tradition. I go on to consider whether this complex tradition affords a
compelling frame within which to conjure with the issue of humanitarian
intervention by drawing on specific instances of such intervention
and measuring these against just war stipulations. Finally, I
round things off with a few comments on the politics of humanitarian
intervention drawn from the Augustinian tradition. Augustinian realism
warns us that no perfect standard of justice or fairness can ever
be attained by which to adjudicate questions of war, violence, and
intervention. But that does not mean that one should exile the language
of justice and the concerns intrinsic to it from matters of war
and peace altogether.
2. See Brian D. Orend, War, STANFORD ENCYCLOPEDIA OF PHIILOSOPIIY, Feb.
2, 2000, at http://plato.stanford.edu/entries/war/
(last visited Sept. 4, 2001) (describing
realism as the theory that states should exercise whatever power is necessary
to maximize their self-interests, regardless of moral concepts).
3. See id. (referring to pacifism as the rejection of war because of the killing
that it causes, and the belief that war cannot be justified on any moral grounds).
See general” Kenneth W. Kemp, Morality & War, reprinted in INTFRNATIONAI
MILITARY & DEFENSE ENCYCLOPEDIA (Trevor N. Dupuy, ed., 1992) (discussing
the alternatives to the just war theory such as pacifism and permissivism or realism).
4. See Just War Theory and the Faith oj Unitarian Univerwalisn, at
(last visited Sept. 8, 2001) (stating that
just war theory recognizes that war is always the last resort because it is an evil
means to an end, but in certain circumstances it may be a necessary evil).
5. See Mark Edward DeForrest, Just War Theori and the Recent U.S. A1ir
Strikes Against Iraq, at http://law.gonzaga.edu/borders/documents/deforre.hti
(last visited Sept. 8, 2001) (citing St. Augustine of Flippo, Against Faustus the
Manichaean XXII. 73-79 in AUGUSTINE: POLITICAL WRITINGS 222 (Michael W.
Tkacz & Donald Kries, trans., Ernest L. Fortin & Donald Kries, eds., 1994))
[hereinafter St. Augustine of Hippo] (explaining that there are certain just inten-
GROTIuS LECTURE SERIES
I. THE JUST WAR TRADITION
The just war tradition is a way of thinking that refuses to separate
politics from ethics. Unlike the competing doctrine of state-centered
strategic realism, just war argument insists one must not open up an
unbridgeable gulf between "domestic" and "international" politics.
The tradition of political realism and that of just war embrace contrasting
presumptions about the human condition." The realpolitikers,
whose great forefathers are Machiavelli and Hobbes, hold that men
in general are ungrateful, dissembling, back-stabbing, and untrustworthy-
Machiavelli here-or, in Hobbes' account, that humans are
isolates driven into forward motion, bound to collide violently and
that humanity in general is defined by the most horrible equality
imaginable-the power each has to kill each other. It takes a lot of
coercive force to hold such creatures in check, not in the interest of a
positive vision of human possibility but simply to stop them marauding.
By contrast, just war thinkers begin with a commitment to a view
of human beings as creatures who are always conflicted and torn and
whose human relationships are characterized by love and kindness as
well as selfishness and cruelty. human solidarity and human plurality.
These are constant features of the human condition that are
played out in a variety of plural ways in diverse cultures. luman
motives and actions are always mixed: we both affirm and destroy
solidaristic possibilities, often doing so simultaneously. For example,
we affirm solidarity within the particular communities of which we
are a part-for every human being is a member of a way of life that
embodies itself institutionally as family, tribe, civil society, state.
This plurality is a constant feature of human political and moral life.
We may launch ourselves into wider or more universalistic possibilities
from this particular site, seeking to affirm our common humanity
tions for which a war may be fought in addition to cerain authorN and procedural
requirements that must be met before a war is defensible.
6. Unlike modem epistemologists. both traditions just \\ar and realim
hold that one cannot simply bracket ontological considerations in treating an perspective
of social and political life. Whether this is made as an e\pliclt philosophic
argument or not is another matter. Some view of \\ hat \%e used to call "'humann ature"
is implied if not unpacked outright.
AM. U. INT’L L. REV.
through organizations, institutions, ways of being and thinking that
draw us into wider streams of existence. Or we may not. And we
may not in dreadful and destructive ways, for example, by denying
the very humanity of those from different plural sites than our own.
This denial of humanity is also a denial, or a refusal to recognize,
that all cultures, without fail, define and refine moral codes and that
these moral codes invariably set norms for the taking of human life;
all have some notion of what counts as a violation of this norm.
Standards of moral conduct pertain in all arenas in which human beings
engage one another, from families to polities. The challenging
question is what standards and to what ends, not whether moral
norms are applicable to the arena of politics (as but one example) or
The tradition of realpolitik,7 by contrast, insists that the rules
which govern domestic moral conduct-here the focus is a body
politic internally-are inapplicable to the world of what used to be
called “men and states.” Just war as politics insists that while it
would be utopian to presume that relations between states can be
governed by the premises and care taking apposite in our dealings
with family and friends, this does not mean a war of all against all
must kick in once one leaves the hearth or the immediate neighborhood
or even the borders of one’s country. The strategic realist is
governed by instrumental calculations and some concept of national
interest; the just war thinker by a complex amalgam of normative
commitments and pragmatic considerations that overlap in a number
of important respects with those of strategic realism although the
starting points vary. The just war thinker is not nearly so harsh in his
or her evaluation of what is usually called liberal internationalism
with its justifications of intervention in the name of sustaining, supporting,
or building a universal culture of Kantian republics as is the
realpolitiker. At the same time, he or she would voice considerable
skepticism about any such project, not because she opposes making
more robust an international regime of human rights and greater fairness
and equity but, rather, because of her recognition of the intrinsic
value of human cultural plurality. From the Augustinian side, noth-
7. See Orend, supra note 2 (explaining the concepts regarding the realpolitik
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ing less than the sin of hubris' is implicated in any attempt to weld
humanity into a single monoculture: here the story of the Tower of
Babel is instructive.9 The reason God intervened, scattered humanity,
and set us to babbling was to remind humanity of the need for humility
and limits. The Babel story is a cautionary tale concerning any
and all attempts to forge a uniform humanity under a single scheme
Just war thinkers worry that certain appeals to a more cosmopolitan
or internationalist order-whether of a Kantian or utilitarian
sort-and to the alleged possibility of severing intervention with
force from any consideration of strategic considerations or national
interest, invites radical de-politicizing of national action. Note, for
example, that in the multiple cases of resort to bombing in the second
Clinton administration, 0 the word war dropped away as the phrase
humanitarian intervention" triumphed. But no one can intervene
militarily without getting blood on his hands. It follows that humanitarian
intervention that involves soldiers, automatic weapons,
attack helicopters, bombers, cruise missiles; the vast modem arsenal
of war is a war of one sort or another. I will have more to say on this
as we proceed.
As a theory of war fighting and resort to war, just war thinking is
best known as a cluster of injunctions: what it is permissible to do;
what it is not permissible to do. For example, a war must be the last
resort; a war must be openly and legally declared; a war must be a
8. See Christopher Ingham, A Brief Introduction to Greek Tragedy, LESSON
TUTOR (Feb. 3, 2001) at http://vww.lessontutor.comJciGreek.html
sin of hubris as having excessive self-pride and self--confidence that eventually
leads to tragic downfall).
9. See Genesis 11:1-9 (telling biblical story of Tower of Babel); see also
Tower of Babel, in THE CATHOLIC ENCYCLOPEDIA, available at
(last visited Sept. 8, 2001) (providing
a history and story of the Tower of Babel itself).
10. See, e.g., DeForrest, supra note 5, at 9 (discussing the United States air
strikes against Iraqi military positions in September 1996).
11. See id. (stating that the United States justified the air strikes against Iraq as
a defense of the Kurdish people); see also Mona Fixdal & Dan Smith, Humanitarian
Intervention and Just War, in MERSHON INTERNATIONAL STUDIES REVIEW,
available at http://www.mtholyoke.edu/acad/intrel/fixdal.html
(last visited Sept. 8,
2001) (analyzing humanitarian intervention from a just war prospective).
AM. U. INT’L L. RE[
response to a specific instance of unjust aggression-these are the ad
bellun'2 specifications: the means deployed in fighting a war must be
proportionate to ends; a war must be waged in such a way as to distinguish
combatants from noncombatants, the in bello"' norms.
Whether in evaluating a resort to arms or in determining the bases
and nature of political order more generally, the just war thinker insists
on the need for moral judgments, for figuring out who in fact in
the situation at hand is behaving in a more or less just or unjust manner;
who is more the victimizer and who the victim. Just war insists
on the power of moral appeals and arguments of the sort that, for the
strategic realist, is mere window dressing, icing on the cake of strategic
considerations. For the just war thinker, moral appeals are the
heart of the matter-not the on/v matter but the place from which one
Just war thinkers do not propound immutable rules-they are not,
to repeat, deontologists"4-so much as clarify the circumstances that
justify a state's going to war (jus ad bellum) and what is and is not
allowable in fighting the wars-or interventions-to which a polity
has committed itself (jus in bello).'5 There are those who argue that
our moral squeamishness must be laid to rest in times of war; the image
of the violated woman, the starving child, the blown-to-pieces
man, be put out of sight and out of mind. This is cruel, they say, but
12. See Moseley, sup-a note I (discussing the ad bellum conventions that morally
justify an armed response or war, in other words, the justice of war). These ius
ad helliu principles include: having a declaration by an appropriate authority,
having a righteous cause, having just intentions, possessing a probability of
achievement. and using means proportionate to the end. Id.
13. See Orend, supra note 2 (discussing thejus in bello or "in war" norms that
dictate how a war may be justly fought). These principles fall into two main categories:
I ) discrimination, which determines legitimate targets: and 2) proportionality,
which concerns the use of the appropriate amount of force. hi. Additionally,
the author beliex es that a third notion, responsibility, can be added to the traditional
two categories. Id.
14. ,ee.hist IWa- Theor- and the Faith of Unwtarian Uni vetsalism, supra note 4
(defining deontology as the evaluation of a position in terms of its uniformity with
the first principles of morality).
15. See Kenneth W. Kemp, Just-Watr Theory": A Reconceptualization, in 2:2
PtIBLIC AFFAIRS QUARTERLY 57-74 (Apr. 1988) (discussing formulation and
evaluation of the just war theory): see also supra notes 12-13 and accompanying
text (describing the jus ad belium andju" in hello principles).
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we live in a cruel and dangerous world. We must think in terms of
the Big Picture, the system of sovereign states and balance of forces.
For if we do not think in this way, if we are nalve about the world's
ways, many more human beings will suffer over the long run as
smaller nations or groups of people within nations are gobbled up by
huge empires and tyrants run amok, are ethnically cleansed, are
rounded up and murdered. Just war thinkers acknowledge the importance
of this insistence on the ways in which refusing to counter
aggression may make things worse, but they go on to insist that we
can hold within a single frame a concern with peoples in a collective
sense and a commitment to the dignity of each and every human person:
the ethical concerns are never simply irrelevant.
II. THE JUST WAR TRADITION AS FRAME FOR
ACTION: SIC ET NON
The matter in dispute is whether or not the just war tradition gives
us a vantage point from which to assay critically forms of intervention
that appeal to humanitarian considerations, or, specifically, to
the just war tradition itself, often in and through the many conventions
and agreements that have solidified and codified that tradition
over time. For the just war thinker, military intervention cannot simply
be a knockdown conclusion that follows from the articulation of
triggering stipulations and claims.
How, then, would the just war thinker build a case for intervention?
I have already noted that this tradition is demanding and inherently
complex, aiming simultaneously to limit resort to arms and to
respond to the urgent requirements of justice. There are times when
claims of justice may override the reluctance to take up arms. For
there are grievances and horrors to which we are called to respondprovided
we can do so in a manner that avoids, to the extent that it is
humanly possible, either deepening the injustice already present or
creating new instances of injustice.
The first part of the just war framework is devoted to determining
whether or not a resort to war-or intervention-is justified. War, for
example, should be fought only for a justifiable cause of substantial
importance. The primary just cause in an era of nations and states is a
nation's response to direct aggression. Protecting citizens from harm
AM. U. INT’L L. REV.
is a fundamental norm and it scarcely counts as protection if no response
is made when one’s countrymen and women are being
slaughtered, hounded, routed from their homes and the like.
But there are other justified occasions for war. Aggression need
not be directed against one’s own to triggerjus ad belum argument.
The offense of aggression may be committed against a nation or a
people incapable of defending themselves against a determined adversary.
If one can intervene to assist the injured party, one is justified
in doing so-provided other considerations are met. From St.
Augustine on, saving “the innocent from certain harm” has been recognized
as a justifiable cause: 6 the innocent being those who are in
no position to defend themselves. The reference is not to any presumption
of moral innocence on the part of victims: nobody is innocent
in the classic just war framework in that sense.’7 In our time, this
saving of the innocent is usually referred to as humanitarian intervention.
This does not mean, of course, that any one nation or even a group
of nations can or should respond to every instance of violation of the
innocent, including the most horrific of all violations-ethnic
cleansing. The just war tradition adds a cautionary note about overreach.
Be certain before you intervene, even in a just cause, that you
have a reasonable chance of success. Don’t barge in and make a bad
situation worse. Considerations such as these take us to the heart of
the so-called “in bello” rules. These are restraints on the means to be
deployed even in a just cause. Means must be proportionate to ends.
The damage must not be greater than the offenses one aims to halt.
16. See St. Augustine of Hippo, supra note 5, at 220 (acknowledging that civilians,
prisoners, conquered peoples, and those who pose no threat to peace,
should be shown mercy).
17. This is another way in which the just war tradition guards against moral triumphalism:
by insisting that even though the balance of justice may fall more or
one side than the other in cases of conflict, there should be no presumption that the
aggressor is wholly evil; the aggressed against wholly innocent. Presuppositions of
total innocence can and have fueled horrible things.
18. See Fixdal & Smith, supra note 11 (examining the idealism inherent in humanitarian
intervention that causes the “CNN effect” or method by which ethical
concern is produced by tragedy and then molded into a political action).
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Above all, non-combatant immunity must be protected." Noncombatants
historically have been women, children, the aged and infirm,
all unarmed persons going about their daily lives, as well as
prisoners of war who have been disarmed by definition.
Knowingly placing non-combatants in jeopardy, knowingly putting
in place strategies that bring greatest suffering and harm to noncombatants
rather than to combatants, is unacceptable on just war
grounds. Better by far to risk the lives of one's own combatants than
the lives of enemy non-combatants. Just war thinking also insists that
war aims be made clear, that criteria for what is to count as success
in achieving those aims be publicly articulated, and that negotiated
settlement never be ruled out of court by fiat. The ultimate goal of
just war is a peace that achieves a greater measure of justice than that
which characterized the ante-bellum period.
Thejus in bello considerations are borne along by two major principles
of discrimination, or targeting only legitimate war targetshere
non-combatant immunity-together with proportionality, a way
of restraining the scope and intensity of warfare in order to minimize
How well does the just war tradition bear up when it is specifically
evoked as the grounding and framework for intervention? We have
two examples of recent vintage that afford interesting and ambiguous
case studies: the 1991 Persian Gulf War 2'-not, to be sure, a humanitarian
intervention per se although humanitarian grounds
melded to traditional grounds of non-aggression against a sovereign
19. See Kemp, supra note 3. at § 2.2.2 (explaining that certain groups of individuals,
including ex-combatants, medics, chaplains, and certain non-combatants,
fall under this immunity); see also Nicholas G. Fotion, The Gulf War: Cleanly
Fought, in 47 BULLETIN OF THE ATOMIC SCIENTISTS, Sept. 1991, at
fotion.html (stating that attacks
should be aimed at military forces, not at the civilian population as was done by
both the Allied and German forces in World War II air raids on urban populations).
20. See Fotion, supra note 19 (examining the morality of the Gulf War through
the just war framework); see also Stephen A. Bourque, Correcting M'ths About
the Persian Gulf War: The Last Stand of Tawakaba. in 51 MIDDLE E.J. 1, para. 1
(1997), available at http://www.mideasti.org/articlesfbourgue.html
battles and myths of the Gulf War).
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state were evoked; and the 1999 intervention in Kosovo.2 The Persian
Gulf War was prompted by the annexation of Kuwait, the brutalization
of Kuwaitis, and the gutting of their country. These were
clear violations of basic principles of international order that encode
respect for the autonomy of states. You do not have to like the regime
in place in a country that is the victim of aggression to acknowledge
that an ad bellum trip wire has been crossed, a crime (in
Michael Walzer's term)2 committed by one state against another,
one that violates the United Nations charter.2 3
The American response to Iraqi aggression evoked just war imperatives
from the beginning. Such considerations framed much of
the debate about whether or not to intervene and what means to deploy
once one had. The language of 'just cause' was repeated endlessly
as was 'last resort': the argument here being that sanctions
were tried and failed. Legitimate authority was articulated explicitly:
a twenty-seven-nation coalition acting under the imprimatur of the
United Nations and in the name of collective security. So far so
good? Yes and no.
Just war principles are ambiguous and complex. Evaluations have
to be made at each step along the way. Greater and lesser evils (injustices)
must be taken into account. Thus, certain questions must be
asked, including: What would be the cost of resisting Iraqi aggression?
Would the post-war Gulf region be a more, or less, unjust and
disordered region? Might not the human and environmental damage,
and the assaults to the spirit each and every war trails in its wake,
21. See The Road to Wa-, SOCIALISM TODAY, May 1999, available at
(outlining the events that led up to
the bombings that were intended to force Milosevic to step down); see also Patrick
Beaumont & Patrick Wintour, Kosovo: The Untold Story (Part Twvo), THFI
OBSERVER, July 18, 1999, available ci1
, 10639,520177,00.html (discussing
the NATO bombings during the intervention).
22. See generally MICHAEL WALZER, JUST & UNJUST WARS (Basic Books, Inc.
1997) (analyzing the principles of international order that when violated constitutes
a violation of one state's autonomy by another).
23. See U.N. CHARTER art. 2, para. 4 (stating that nations must abstain from the
threat or use of force against another independent state in terms of political autonomy,
territorial integrity, or any other reason contrary to the goals of the United
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blight any peace? The ends may be justified-restitutive response to
aggression-but the means may be unjust or unjustifiable, even if
pains are taken to avoid direct targeting of civilians.
Much of this complexity fell out of the argument as a thinned-out
variant on "just war discourse" emanated from the supporters of intervention
in the House of Representatives and the Senate, as well as
from the Bush Administration.24 It was simultaneously heartening
and troubling to hear just war discourse being evoked-heartening
because concerns of justice were foregrounded and because limits to
the use of force as well as its justification came into debate. Troubling
because the rhetoric of justification veered dangerously toward
a crusading moral triumphalism with Saddam Hussein called a Hitler
for our time, although the Iraqi people themselves were spared any
blanket Nazification rhetorically speaking.
This rhetorical upping of the ante points to a temptation related to
the just war tradition, namely, the way in which it can slide over into
the rhetoric of crusades. Must Saddam really be a Hitler in order to
justify going to war against his regime? On the other hand, on the in
bello front, care was taken in coalition targeting policy in line with
just war restraints. If postwar estimates of the noncombatant casualties
of coalition bombing are at all accurate-five thousand to fifteen
thousand civilians according to Greenpeace, scarcely known for its
support of forceful intervention-that is ghastly but something to be
grateful for at the same time. All one need do is to compare this discriminatory
policy against the indiscriminate terror bombing of civilian
targets in World War II to appreciate the restraint the coalition
partners placed on themselves in their targeting strategy.
That having been said, one should nonetheless be haunted by the
possibility that something as grave as reflecting on so-called "collateral
damage," that is, the harm that comes to non-military targets
(e.g., civilian noncombatants) from the legitimate targeting of a
24. See Daniel Schorr, Ten Days That Shook the White House, COLUM.
JOURNALIsM REv. (1991), available at http://www.cjr.orgyear/91/4/tendays.asp
(evidencing that the change in the Bush Administration policy to support the Kurds
was caused in part by public support for intervention since it was a just cause). The
public support was generated mainly by media coverage of the displaced peoples.
AM. U. hVT’L L. REV.
military site, rather easily becomes formulaic.25 This possibility came
to light most vividly in the Kosovo intervention. The New York
Times offered a long reprise on the bombing of the Chinese embassy.
26 Readers of that piece learned that not only error, but also incompetence,
were involved as what the Times called “inexpert” targetters
forged forth absent higher-level accountability. What most
interested me, however, was the visual that accompanied this piece.
One sees an aerial photograph identified as target #493, “Belgrade
Warehouse”, described as a site for “Supply and Procurement” for
the Serbian forces. “Collateral damage” is noted and ranked as: “Tier
3 High” with a “Casualty Estimate” of three to seven civilian workers
and an additional Calculation of “unintended civilian casualties
of twenty-five to fifty.”27 We’ve done our moral duty, this seems to
say. Calculating civilian casualties in such a routinized way violates
the spirit if not the letter of just war teaching.
Just war thinking also requires sustained attention even after the
shooting has stopped. Because the media focused nearly all its concerns
on whether or not noncombatants were actual targets of coalition
bombing strategy during the course of the conflict in the Gulf,
the public’s attention was deflected from the long-range effects of
bombing, including life-threatening assaults to the infrastructure of
Iraqi society-energy and water supplies, for example. These are
matters that require explicit attention within a just war framework.
The strategic realist can say, “Hit anything that makes them hurt and
impairs their ability to fight.” But the just war thinker must not move
so hastily. He or she must sift out that which is vital to the opponent’s
war effort-including power and communication stationsfrom
that which, while it may be drawn into support of military
actions, is essential to sustain civilian life: here water and food
supplies are foremost, even paradigmatic, as an example of what
25. See Moseley, supra note I (espousing the doctrine of double effect as a
justification for civilian casualties or “collateral damage” that are foreseeable yet
an accidental effect of destroying a legitimate military target).
26. See Steven Lee Myers, Cthinese Embassv Bombing: A Wide Net qfBhatne,
N.Y. TIMEs, Apr. 17, 2000, at I (recounting the accidental bombing of the Chinese
Embassy and the process by which targets for the intervention were picked by
NATO and the United States).
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The First Geneva Protocol (1977)21 codifies just war thinking on
civilian and nonmilitary targeting in language that directs our attention
not only to the buildup to war, or the war itself, but to its longterm
consequences. Those consequences now include malnutrition
and epidemics linked directly to inadequate food and water supplies
What this adds up to is the following: if just war is evoked, those
evoking it should stay within the framework they have endorsed.
This framework was abandoned once the Iraqis had been routed from
Kuwait. But the war, or the aftermath of the war, continued. The
health catastrophes faced by the Iraqi public; the plight of the Kurds,
and the disproportionate casualty figures, with estimates of 100,000
Iraqi soldiers killed and 300,000 wounded-raises serious ethical
concerns. 29 Was this a fair fight or a turkey shoot? Just war thinking
does not permit one to evade such questions. The lopsidedness of
casualties is an occasion for serious debate and a problem for the just
war thinker as it is not for the strategic realist.
Also worrisome is the fact that just war considerations fell off the
rhetorical radar screen once hostilities ceased. Spokesman for the
United States government reverted almost immediately to the language
of strategic realism and the inviolability of sovereignty,
thereby justifying coalition refusal to "intervene" in the internal affairs
of Iraq when the plight of the Kurdish people captured our attention.
30 Can you really stand back and say, "No intervention in internal
affairs, that's international law," when you have been
28. See Protocol Additional to the Geneva Conventions of 12 August 1949, and
relating to the Protection of Victims of International Armed Conflicts (Protocol I),
of 8 June 1977; see also Judith Gardam, A Feminist AnalYsis of Certain Aspects oJ
International Humanitarian Law, 12 AUSTRALIAN Y.B. INr'L L. 265, 270-74
available at http://vww.law-lib.utoronto.ca/Diana/fulltext/gard2.htm
Sept. 8, 2001) (examining Protocol I through the just war theory as one of the last
efforts to codify the humanitarian law of armed conflict).
29. See R. Jeffrey Smith, US Has, but Won t Release Tally oJBuried Iraqi Soldiers,
WASHINGTON POST, Mar. 26, 1991, at AII (stating allied military officials
in Saudi Arabia estimated 100,000 Iraqi solider casualties).
30. See Schorr, supra note 24 (stating that the Bush Administration would not
intervene in Iraq).
AM. U. INT’L L. REV.
responsible in part in bringing about those internal affairs in the first
place? This creates the sort of ethical schism the just war tradition
aims to bridge. There is nothing wrong per se with diplomatic and
strategic categories-depending on how they are used and to what
ends. The problem I am gesturing toward is the taking up of the
rhetoric of strategic realism abruptly once the rhetoric of just war
seems to have exhausted its utility.
NATO intervention in Kosovo is, for many, a paradigmatic instance
of humanitarian intervention in the very name of humanity itself,
calling to mind the Nuremberg precedents and “crimes against
humanity.” Hitler and Nazism were evoked repeatedly to characterize
Serbian policy.” It is the in bello dimensions of just war I aim to
emphasize, although certain ad bel/um issues would come into play
in any exhaustive examination of the Kosovo intervention within a
just war framework, including the vexing matter of “right authority.”
If, as an editorial in Commonweal magazine pointed out, a hawk (or
strategic realist) might have refrained in this situation-James
Baker’s famous “we’ve got no dog in this fight” 32-and a pacifist
similarly and by definition, unless he or she could somehow squeeze
what was going on within the category of a “police action” which
pacifism can endorse, interventionists of various sorts argued forcefully
that ethnic cleansing is one of those rare knock-down triggers
ad belhtm. Interventionists come in several varieties, of course, and
Commonweal notes one sort-called “genuine interventionists”-
who hold to a seamless web approach to human-rights violations,
namely, they are all “created equal” and justice demands going evei)
ywhere to stop certain harms from continuing if you go anywhere
(provided, of course, you have the means). “Therefore, international
action ought to be taken almost everywhere to stop slaughter and
31. See Robert R. Reilly, Reductio Ad Hitlerum, NAT’L CATHOLIC REiGST.R,
June 13, 1999, at http://www.againstbombing.org/Riley.htm
Thatcher’s parallel between Serbia and Nazism). See generallv Barry Lituchy, The
Pope, the Nazis, and the CIA: Some Notes on the Vatican ‘s Role in the Destruction
of Yugoslavia, THE COLLEGE VOICE, Oct. 1995, available at
http:www.srpska-mreza.com/library/facts/Lituchy.html (examining the role of the
Catholic Church and the influence of Nazism in Serbian policy).
32. See The Road to War, supra note 21 (quoting U.S. President Bush’s Secretary
of State, James Baker, stating: “We’ve got no dog in this fight” after a visit to
Bosnia in June 1991).
GROTIUS LECTURE SERIES
ruin, whether it is born of ethnic and religious rivalries or internal
political divisions. The principle of intervention should be universal
and uncompromising.1 33 That is not the sort of interventionism the
just war tradition underwrites so long as it remains tethered to Augustinian
realism, hence attuned to the role of contingency, including
a state's or a coalition's inability to respond evenly and robustly everywhere,
whenever something terrible is happening, whatever the
demands of an absolute standard of justice.
Humanitarian intervention comes under the category of saving innocents
from certain harm, or, as it is now more commonly called,
those in need of rescue. Augustine might evoke neighbor love here:
serving one's neighbor in the name of a form of friendship and stewardship.
4 How did this play out on the ground? Well, on the ground
Kosovar Albanians were harassed, tormented, deported, and killed.
But we-primarily the United States, although under the rubric of
NATO-did nothing on the ground to stop this. Our stated intent,
cast within human rights-justice language, was to stop ethnic
cleansing in the name of humanity itself. The argument was that
World War II had taught us that genocide is a crime that must not go
unpunished. Other avenues had been exhausted. Mr. Milosevic was
immune to diplomatic overtures. NATO is a legitimately constituted
concert of states and, therefore, has authority to act, if need be, for
humanitarian reasons and in the interest of collective self-defense:
protecting the whole idea of a European comity of nations."- These
are grounds for selective humanitarian intervention with considerations
that go beyond the crimes themselves: so let's assume ad bel-
33. See Gerald Vann, Intervention: When and How?,
COMMONWEAL, Oct. 22. 1999, available at
1999/9910221991 022ed.htm (discussing
beliefs of genuine interventionists).
34. See James V. Schall, Augustinian Political Philosophy, TIiE POLITICAL
SCIENCE REvIEWER, XXINII (1994). available at
thought that right living would produce a prosperous and more noble public
35. See Conon Values, NATO. available at
(last visited Aug. 31, 2001) (stating that
NATO's purpose is to ensure freedom of its members and emphasizing the protection
of human rights).
AM. U. INT'L L. REV.
The biggest problem from a just war perspective in the Kosovo
war was the means deployed to halt and to punish ethnic cleansing.
In the first instance, our means speeded up the process as the opening
sorties in the bombing campaign gave Milosevic the excuse he
needed to declare martial law and to move rapidly in order to complete
what he had already begun, entrenching his forces in Kosovo
before NATO might change its mind about introducing ground
troops into the conflict-something the United States, rather astonishingly,
announced it would not do from the get-go. 6 We blundered
into a strategy, not giving much consideration to the likely reaction
to our bombs, namely, a deepening of the terror and expulsions.
Hence, there was no preparation for the influx of desperate humanity
to neighboring countries and regions, their plight made doubly desperate
by lack of food, water, medicine, and shelter at their points of
terrified egress. This doesn't seem a good way to run a humanitarian
intervention whether in the name ofjustice or any other good."
The heart of the matter from a just war framework is this: We
made no attempt to meet the strenuous demand of proportionality;
rather, we violated the norm of discrimination in a strange up-ended
kind of way, namely, by devising a new criterion: combatant immunity,
as our combatants ranked higher as a consideration than did
non-combatant immunity for Serbian-or Albanian Kosovar-civil-
36. See Military Operations in Federal Republic of Yugoslavia Limitation Act,
H.R. 1569, 106th Cong. (1999) (prohibiting the use of Department of Defense
funds from being used for deployment of ground forces in Yugoslavia); Beaumont
& Wintour, supra note 21 (repeating Albright's statement that conflict would escalate
no further and that there would be no ground troops).
37. There are so many critical questions to ask about this intervention. One
worry, voiced by a number of critics, is whether this ostensibly new "universal
dispensation can only apply to Serbia and a mere handful of other states that meet
very exacting requirements: they must be sufficiently weak to be easily defeated,
yet sufficiently advanced to present worthwhile targets for no-casualty bombardment....
Further they must be sufficiently illiberal to perpetrate outright massacres,
yet sufficiently semi-democratic to capitulate when the mostly bloodless
bombing of electrical supplies and other targets evokes the protests of inconvenienced
citizens..." See Edward N. Luttwack, No-Score War, TIMES Lir[ERARY
SuPP., July 14, 2000, at 11, (discussing the new universal dispensation and its application).
Luttwack adds: "What does it mean for the morality of a supposedly
moral rule, when it is applied arbitrarily against some, but not others?" /d.
GRoTIus LECTURE SERIES
ians, for that matter.38 With our determination to keep NATO soldiers-
read American combatants-for that was the overriding domestic
political consideration that had nothing to do with just war or
humanitarian issues-out of harm's way. we embraced combatant
immunity for our combatants and indirectly for the Serbs soldiers,
too. Instead, we did a lot of damage from the air, reducing buildings
to rubble, tearing up bridges, killing people in markets and television
stations. It is harder by far to face determined combatants on the
ground, to interpose one's combatants between the Kosovar Albanians
and their depredators. This wasn't given a second thought. We
did not introduce Apache helicopters into the situation for fear of a
loss of but one in combat.39 If combatant immunity is to become our
new organizing principle, the United States will surely face in future
situations in which we refuse or are unable not only to do what is
right but to do what may be necessary, having set zero-casualties as a
new norm for the way we do war.
This is a strange turn of events. The Serbian army could operate
with impunity without any worry about facing its opponents on the
ground. In the meantime, there was plenty of "collateral damage" to
civilians going on. Once we had exhausted the obvious military targets,
we degraded the infrastructure on which civilian life dependsthis
despite a disclaimer from President Clinton that we had no quarrel
with the Serbian people for they, too, like the Iraqis under Saddam,
were victims. 40 Because you cannot eliminate atrocities on the
38. See Compilation of International Norms and Standards Relating to Disability,
§ 5.4, available at http://www.un.orglesa/socdev,/enableidiscom95.htm
(discussing the establishment of the rule of noncombatant immunity).
39. Interservice rivalry is also a factor, or may be, in the matter of use or nonuse
of Apache helicopters given rivalry between the Army and Air Force on the
use of a planes to attack surface targets. Thanks to Judge Richard Posner for calling
my attention to this issue. See generally Gregg Easterbrook, Apocrphal Now,
THE NEW REPUBLIC, Nov. 11, 2000, available at
interservice rivalry with the example of the Army Apache helicopter in the
40. "First, I cannot emphasize too strongly that the United States and our European
allies have no quarrel with the Serbian people." Tet of President Clinton
Videotaped Address to the Serbian People, Mar. 25, 1999, at
AM. U. INTL L. REV.
ground by dropping bombs from an altitude that keeps them safely
out of range of any possible ground-fire, although the Serbians had
almost no ability to fight back, our ends were tainted by our meansmeans
that will surely haunt us in the future. It is a terrible thing for
anyone to kill or to be killed. But that is the occupational risk of men
and women in arms. If the United States is no longer prepared to take
any such risk for any cause, then by definition it cannot fight wars
effectively even when a case has been made on comparative justice
grounds. Then-President Clinton was looking for a “no casualty” or
“no cost” war.” But one pays a price, and not just in monetary terms,
for such ventures. Isn’t “riskless warfare” an incoherent idea? As
Paul W. Kahn argued in a hard-hitting piece on War and Sacrifice in
If the decision to intervene is morally compelling, it cannot be conditioned
on political considerations that assume an asymmetrical valuing of
human life. This contradiction will be felt more and more as we move into
an era that is simultaneously characterized by a global legal and moral order,
on the one hand, and the continuing presence of nation-states, on the
other. What are the conditions under which states will be willing to commit
their forces to advance international standards, when their own interests
are not threatened? Riskless warfare by the state in pursuit of global
values may be a perfect expression of this structural contradiction within
which we find ourselves. In part, then, our uneasiness about a policy of
riskless intervention in Kosovo arises out of an incompatibility between
the morality of the ends, which are universal , and the morality of’ the
means, which seem to privilege a particular community. There was talk
during the campaign of a crude moral-military calculus in which the life
of one NATO combatant was thought to be equivalent to the lives of
20,000 Kosovars. Such talk meant that even those who supported the intervention
could not know the depth of our commitment to overcoming
humanitarian disasters. Is it conditioned upon the absence of risk to our
own troops? If so, are such interventions merely moral disasters-like
that in Somalia-waiting to happen? If the Serbs had discovered a way to
inflict real costs, would there have been an abandonment of the Kosovars?
41. See Beaumont & Wintour, supra note 21 (stating that the U.S. was aiming
for a no-cost war in which casualties and collateral damage should be avoided).
42. Paul W. Kahn, War and Sacrifice in Kosovo, Philosophy and Public Affairs
1, 1-6 (1999).
GROTIUS LECTURE SERIES
Something called "The Clinton Doctrine" fueled the Kosovo operation.
43 This doctrine was a hotchpotch: neither strategic realism,
nor just war, nor liberal internationalism. It established no clear
grounds for humanitarian intervention or political rescue offering instead
a m6lange of ideas and desiderata that were so murky it was
nearly impossible to glean from it any clarity for either intervening
or refraining from intervening in situations of humanitarian catastrophe.
The doctrine consisted of two parts that involved promulgating
the use of force in behalf of universal values and justifying military
intervention in the internal affairs of states.
According to Michael Mandelbaum. in a highly critical piece in
Foreign Affairs, this "so-called doctrine" made a hash of things in
the Balkans where spirals of violence continue, where any indication
of an American pull-out inspires panic, and where the end-result of
the deteriorating mess is de facto partitioning, not unlike the outcome
in Bosnia where the Dayton Accords ratified the results of ethnic
cleansing.' 4 In Kosovo, those who were victims are now victimizers
and the more brutal members of the Kosovo separationist movement
seem to be in ascendancy. But these persistent and deteriorated conditions
have dropped off our media radar screen."
Let us rehearse a few of the problems with this doctrine and policy
as it played out in Kosovo as a way of solidifying the difference between
this way of justifying "humanitarian intervention" by contrast
to a just war politics framework that cavils at risk free solutions or
pseudo-solutions to horrible tragedies and political problems. Con-
43. "I want us to live in a world where we get along with each other, with all of
our differences, and where we don't have to worry about seeing scenes every night
for the next 40 years of ethnic cleansing in sonic part of the world." See Charles
Krauthammer, The Clinton Doctrine, Mar. 29, 1999, at
http://www.cnn.com/allpolitics/time/1999/03/29/doctrine.htl (providing a summation
of the Clinton foreign policy of the 1990s).
44. See generally Michael Mandelbaum, A Perfect Failure, FORLIi.\ All AIRS,
Sept./Oct. 1999, at 2 (discussing NATO's war against Yugoslavia).
45. The run-up to the Kosovo intervention are, of course, enormously complicated,
including the savvy use by the Kosovo Liberation Army of the media and
international human rights groups to make the case not only for the existence of a
humanitarian catastrophe, clearly the case, but for intervention of a sort that would
bolster their cause and case even though the United States had, in 1998, characterized
them as a terrorist organization. See id.
AM. U. INT’L L. REV.
sider that our entire purpose in bombing was to save lives. Estimates
are that some twenty-five hundred people had died before the
bombing campaign and that during the “eleven weeks of bombardment,
an estimated ten thousand people died violently in the province,
most of them Albanian civilians murdered by Serbs…. By its
[the bombing campaign] end, 1.4 million were displaced. .. . The alliance
also went to war, by its own account, to protect the precarious
political stability of the countries of the Balkans. The result, however,
was precisely the opposite. .”I’ What Mandelbaum points to is
a political failure that emerged, in part, given the means deployed to
achieve our stated ends. Evoking strategic realism and national interest
as well as state sovereignty as a value, Mandelbaum argues that
the Clinton doctrine’s squishiness virtually guaranteed that United
States policy would be driven by media attention and public opinion
polls rather than coherence of any sort.
Starting from a different perspective than Mandelbaum’s, I come
to quite similar conclusions. Mandelbaum is surely correct that a
quick resort to bombing was the Clinton administration’s modus operandi
to almost every foreign policy jam-whether the administration
was using at any given point the rhetoric of national interest, or
national security, or punishing dictators, or saving lives, or fighting
the new global war against terrorism. (This being the stated rationale
behind the blowing up of what turned out to be a legitimate pharmaceutical
plant (The Shifa Plant) in Kartoum, Sudan.) Also preferred
were embargoes that degraded the civilian infrastructure of targeted
societies-a way of making war on civilians. Mandelbaum, too, opposes
this way of punishing the innocent in order to express outrage
at the guilty. The clearest rationale available to us to oppose such a
strategy lies in the comparative justice considerations that arise from
just war imperatives.
How would a just war approach would help us to parse such questions
further? Consider former-President Clinton’s comments
throughout the Kosovo intervention and as part of the run-up to it.
Mr. Clinton deployed strained domestic analogies in an attempt to
46. See Mandelbaum, supra note 44, at 2-3 (quoting the death statistics resulting
from the Kosovo conflict).
GROTIUS LECTURE SERIES
put a distinctively American stamp on the Balkans tragedy. 7 The
events he selected can be shoe-homed within our reigning political
preoccupations only via a tortured logic. The just war tradition, remember,
attempts to balance or to hold in fruitful tension the requirements
of universal moral commitments with respect for the plurality
of polities, cultures, and regimes in and through which
humankind realizes itself. We are invited to acknowledge that which
is "in common" and to respect and recognize signs of difference so
long as these do not violate certain basic norms." Rather than helping
us to see suffering humanity in and through the particular plight
of the Albanian Kosovars with their quite particular and complex
history, Mr. Clinton forced domestic analogies along these lines: he
likened the signing of a federal hate-crime statute to the bombings of
Belgrade, as each was designed to stop haters. The Kosovo intervention
got mapped onto the preferred domestic rhetoric of the Clinton
administration. The President spun out a "vision" for a new post-war
Kosovo4 9 cast in the language of a version of multiculturalist ideology
unrealistic even for a pluralist democracy, let alone a fractured,
47. See Remarks by the President in Media Roundtable, May 6, 1999, at
http://www.usembassy.de/clinton99/prescon.htm (quoting President Clinton's remarks
comparing Native American tribes and slavery in United States history to
ethnic cleansing in Yugoslavia).
48. Not all cultural differences are to be respected, clearly. It would take another
sort of paper to spell out those norms that every culture should observe. This
would not be an impossible list as the most egregious wrongs-those that every
political culture agrees are egregious, even if they violate these very norms at the
same time-would include genocide or ethnic cleansing, slavery, torture. There is
going to be political controversy on the boundaries. For example: does female circumcision
constitute a form of torture? For those who call it "female sexual mutilation,"
it clearly does as their rhetoric already reflects their commitment. Even if
one has agreed that a key norm has been, or is being, violated it does not perforce
dictate what a nation's policy can or should be or what forms of intervention in any
given situation can or would be appropriate. There is a routine form of intervention
now-one might call it moral intervention-that takes the shape of international
human rights protest through a growing list of international agencies and watchdog
groups. See generally U.S. Catholic Bishops' Pastoral Letter on War and
Peace, May 3, 1983, at
the moral principles and norms of the just war tradition).
49. See Remarks by the President in Media Roundtable, supra note 47 (quoting
President Clinton's remarks regarding his vision for Southeastern Europe).
AM. U. INT’L L. REV.
destabilized region in the Balkans that will be reeling from the events
here described for the next half-century or more.
But Mr. Clinton undercut this rhetoric in a May 23, 1999, op-ed in
The New York Times. On that occasion, he not only proclaimed restoration
of the status quo ante his number one priority, he added the
caveat that Kosovo would come under a kind of protectorship more
or less run by the KLA (the Kosovo Liberation Army) who aim explicitly
for a separatist all-ethnically “pure” Albanian micro-state,
not a Balkans version of American multiculturalist imperatives. Lost
in both presidential rhetorics of justification (which, of course, clash
with one another) was attention paid to the somber realities of intervention,
including rueful recognition of unintended consequences
and limits to what our power can accomplish.”‘
III. KEEPING JUST WAR AUGUSTINIAN: WHY
RESTRAINT BEGINS AT HOME
If just war thinking is to remain honest, it is best placed within a
framework of Augustinian realism:5 this by contrast to versions of’
just war that, in losing a connection to this rich strand of reasoning,
become mere variants on liberal institutionalism and quickly degenerate
into internationalist sentimentalism. Augustinian realism offers
no assurances that one can make the world safe for anything. 2 Estrangement,
conflict, tragedy-these are constant features of the human
condition. Politics is one way human beings deal with this condition.
Politics on any level never escapes certain pervasive features
of human life in all its complexity and plural modes of cultural expression.
Augustinian realism imbeds deep skepticism about the exercise
of power, beginning with the aims and claims of sovereignty
and of any concentration of power. At the same time, this realism
50. See William Jefferson Clinton, A Just and Necessary War, N.Y. “FiMIs,
May 23, 1999. at W17 (stating President Clinton’s opinion regarding the U.S.
strategy regarding Kosovo).
51. See Schall, supra note 34 (discussing Augustinian and Machiavellian realism).
52. See id. (stating that Augustinian realism recognizes the disorder in tile
world as a result of personal will allowed by God).
GROTIUS LECTURE SERIES
recognizes the inescapability of politics and calls upon citizens to
engage the world of politics faithfully. Politics confronts us with intransigent
'otherness,' with people who have their own cultures and
opinions. Politics requires that we respond in some concrete way to a
world of conflicts and oppositions. The realist of this sort worries
that we have been so overtaken by a sentimentalized notion of compassion
that we have forgotten such mordant teachings as Max
Weber's definition of politics as the boring of hard boards."'
There is little danger of just war turning into either a language of
narrow strategic justification or rhetoric of sentiment within an Augustinian
framework. Built in are barriers to the dangers inherent to
the just war tradition at one end of the continuum that links it up to
crusades and triumphalism. Augustinian realists are not crusaders.
But they insist that we are called to act in a mode of realistic hope
with a hard-headed recognition of the limits to action. You can underwrite
border crossing with this perspective-because it doesn't
worship at the altar of the state-but you cannot do so with impunity
given its built-in respect for the plurality of cultures in and through
which humanity manifests itself.
Augustinianism as a frame for just war stipulations is more likely
to emerge as a via negativa. There are things that must not be done
and that are, by definition wrong; hence, to the extent possible, these
things should be stopped. But this list of knock-down violations is
not infinite: it would include genocide and ethnic cleansing, torture
as an instrument of political power, unprovoked aggression against
another country or people. The aim of intervening in such cases
would be interpositional: not to impose an alternative order but to
stop a disorder, an instance of clear injustice.
In sum: Augustinian just war thinking imposes constraints where
they might not otherwise exist; generates a debate that might not otherwise
occur; and promotes skepticism and uneasiness about the use
and abuse of power without opting out of political reality altogether
in favor of utopian fantasies and projects. It requires action and
53. See Daniel Bell, An Excerpt From: First Love and Earl)" Sorrows. at
http://www.pbs.org/arguina/nyintellectualsbell_2.html (last visited Aug. 31,
2001) ("Politics is a strong and slow boring of hard boards" (quoting Max Weber,
Politics as a Vocation (1918)).
AM. U. INT'L L. REV.
judgment in a world of limits, estrangements, and partial justice. It
fosters recognition of the provisionality of all political arrangements.
It is at once respectful of distinctive and particular peoples and
deeply internationalist. It recognizes self-defense against unjust aggression
but refuses to legitimate imperialistic crusades and the
building of empires in the name of peace. It requires paying close
attention to political rhetoric, its use and abuse. It recognizes, in the
words of Michael Ignatieff, that:
[t]he language of human rights provides a powerful new rhetoric of abstract
justification. Keeping control of war in the modem age means
keeping control of this powerful new rhetoric, making sure that the cause
of human rights does not lure citizens into wars that end up abusing the
very rights they were supposed to defend.54
Another warning, this from theologian, Richard Miller:
Perhaps because humanitarian intervention can have this prima facic altruistic
component, it is tempting to consider it to be different from war,
thereby enabling those who would ban war to approve of such action…
Insofar as humanitarian interventions might be described (or redescribed)
in such terms, they appear to pose little difficulty for pacifists.
The paradigm of domestic coercion or police action, allowing for the use
of violence in order to stop criminal activity, may enable some pacifists to
accept military action (and the prospect of violence)in international affairs.
In other words, humanitarian intervention must bear the heavy
burden of justification that just war, in its classical sense, requires of
any resort to force. What Miller calls the “intuitively admirable” notion
of humanitarian intervention-intuitively admirable “insofar as
they spring from selfless or other-regarding motives”-may lull to
sleep our critical faculties when it comes to deployment of violent
54. MICHAEL IGNATIEFF, VIRTUAL WAR. KOSOVO AND BEYOND 6 (New York:
Metropolitan Books, 2000).
55. See Richard B. Miller, Humanitarian Intervention, Altruism, anl the Limits
of Casuistty, 28 J. OF RELIGIOUS ETHICS 3, 5 (2000) (discussing humanitarian intervention).
56. See id. at 9 (admiring the notion of humanitarian intervention).
GRoTIUs LECTURE SERIES
The American public seems at this point rather inured to the routinization
of use of American bombing in foreign policy situations that
it scarcely registers on the radar screen much of the time. This is especially
true if our consciences can be kept clear through deployment
of a language of justification that speaks to genuine goods. The just
war tradition aims to prevent such insouciance without abandoning
the language of justice in international relations altogether and leaving
it, thereby, to an elastic "humanitarianism" that refuses, much of
the time, to conjure with the complexities of the use of force.
Taking just war seriously raises serious questions about the use
and abuse of humanitarian intervention justifications. What happened
in the Kosovo intervention is a collapse of the rhetoric of justification
as inapt domestic analogies got mapped onto the Balkans:
bombing Serbia is the same as initiatives against so-called hate
crimes. Intervention then becomes a kind of police action-not war,
not violence, never a violation of norms of proportionality and discrimination.
The rhetoric of noble aim-and stopping ethnic cleansing
is a noble aim-may too easily become a cover for troubling and
often ineffective means. Here Augustinian just war thinking would
deconstruct masking rhetoric by insisting that those in authority, and
citizens of the United States, face up to what is going on and ask
themselves the tough questions, not to forestall justifiable intervention
but to try to ensure, insofar as anything in the world of politics
can be ensured, that the means do not defeat, taint, or undermine the
A full fleshing out of this position is beyond the purview of this
paper but perhaps I have said enough to indicate that the humanitarian
intervention, or appeals to such, should not lull our critical faculties
to sleep, but, rather, engage them deeply as these appeals have a
kind of automatic urgency, an ethical imprimatur, of the sort that war
does not. If the just war tradition cavils at the particular way strategic
realists sever international relations from ethical restraints construed
as inapplicable to the world of men, war, and states, this tradition
also challenges the particular way appeals to humanitarianism
and liberal internationalism collapse, or may collapse, domestic and
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Copyright (c) 1993 by the President and Fellows of Harvard College
Harvard International Law Journal
RECENT DEVELOPMENT: RESTORING HOPE: U.N. SECURITY COUNCIL RESOLUTIONS FOR SOMALIA AND AN EXPANDED DOCTRINE OF HUMANITARIAN INTERVENTION
34 Harv. Int'l L.J. 624
MARK R. HUTCHINSON
On December 3, 1992, the United Nations Security Council unanimously passed a resolution allowing a United States-led military force to use "all necessary means to establish as soon as possible a secure environment for humanitarian relief operations in Somalia." 1 This resolution and resulting military intervention, dubbed "Operation Restore Hope," sets important precedents for the doctrine of humanitarian intervention. 2 Moreover, it illustrates the increasing prominence and power of the Security Council in the post-Cold War era. Traditionally unable to reach consensus on the use of force under the U.N. Charter, the United States, Russia, and China were able to agree upon a humanitarian justification for the use of force in Somalia, enabling the Security Council to act.Critical to the application of this new consensus in Somalia was a new understanding of the relationship between apparently mutually exclusive articles of the U.N. Charter. Article 2(4) of the Charter prohibits "the threat or use of force against the territorial integrity or political independence of any state," 3 and article 2(7) prohibits U.N. intervention in matters "essentially within the domestic jurisdiction of any state." 4 An important exception to these general prohibitions, however, is the ability of the Security Council to act under chapter VII of the Charter. 5 Proceeding under chapter VII, the Security Council can determine that certain circumstances constitute a "threat to the peace," and take action under articles 41 or 42 of the Charter. 6 The Security Council action in Somalia reflects new ...
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William and Mary Law Review
Volume 41 | Issue 5 Article 6
Humanitarian Intervention at a Crossroads
Bartram S. Brown
Copyright c 2000 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository.
Bartram S. Brown, Humanitarian Intervention at a Crossroads, 41 Wm. & Mary L. Rev. 1683 (2000),
HUMANITARIAN INTERVENTION AT A CROSSROADS
BARTRAM S. BROWN*
TABLE OF CONTENTS
INTRODUCTION .............................. 1684
I. INTERNATIONAL LAW DoCTRINEs.................. 1691
A. Emerging Outlines of the Clinton Doctrine ..... 1691
B. Foreign Policy Doctrines and International Law 1693
II. HUMANITARIAN INTERVENTIO IN INTERNATIONAL LAW 1697
A. The Case for a Limited Right of Humanitarian
Intervention ............................ 1697
B. The Case Against Humanitarian Intervention .. 1699
C. Legal Justifications Given in Practice for Forcible
Acts of Humanitarian Intervention .......... 1703
D. Should a Constitutional Theory of Interpretation
Apply? ................................ 1706
Ill. THE NEED TO CLARIFY THE APPLICABLE
INTERNATIONAL LAW .......................... 1709
A. The Danger of Invoking a Vague Doctrine
Permitting the Use of Force ................ 1709
B. Historical Precedents: The U.S. Contribution to
Codifying the Laws of War and Peace ........ 1711
1. The Caroline Incident ................. 1711
2. The Alabama Claims Arbitration ........ 1715
3. The U.S. Role in Codification of the
Laws of War ........................ 1718
* Associate Professor of Law, Chicago-Kent College of Law, Illinois Institute of
Technology. A.B., Harvard University; J.D., Columbia University; Ph.D., Graduate
Institute of International Studies, University of Geneva, Switzerland; Member, Council
on Foreign Relations; Member, Advisory Board of the Central and Eastern European
Law Initiative (CEELI) of the American Bar Association; Public Member, 1999
and 2000, Delegation of the United States to the United Nations Commission for
Human Rights. The author wishes to thank James Crawford, Georges Abi-Saab, Pauline
Dessler, and Henry H. Perritt, Jr. for comments on an earlier draft. Valuable
research assistance was provided by Jon Neuleib, Barbara Rutz, and Nancy Tikalski.
The views expressed herein are solely the author's.
WILLIAM AND MARY LAW REVIEW [Vol. 41:1683
IV. THE ELEMENTS OF A LEGAL STANDARD
FOR HUMANITARIAN INTERVENTION ............... 1722
A. The Role of the Security Council ............ 1723
B. The Requirements of Necessity and
Legitimate Purpose ...................... 1726
1. A Humanitarian Necessity Must Be Present 1726
2. Pretextual Interventions Must Not Fall
Within the Right .................... 1727
C. The Requirement of Proportionality .......... 1729
D. The Duty to Respect International Humanitarian
Law and International Human Rights ........ 1731
E. The Duty Not to Make the Humanitarian Situation
Worse than It Otherwise Would Have Been .... 1735
F. Responsibility for Reconstruction ............ 1737
CONCLUSION ............................... 1739
I am free, shielded from your severities, yet who am I?... I
haven't killed anyone? Not yet to be sure! But have I not let
deserving creatures die? Maybe. And maybe I am ready to do
The 1999 NATO bombing of Yugoslavia was not a typical
armed confrontation, and it has raised a challenging set of legal
issues. On the day that Operation Allied Force bombing began,
NATO Secretary-General Javier Solana claimed the moral high
ground when he stated that the goal of the bombing was to "stop
further humanitarian catastrophe."2 Yet unlike the Gulf War,
1. ALBERT CAMUS, THE FALL 95 (Justin O'rien trans., Alfred A. Knopf, Inc.
1971) (1956). This novel centers on a prominent lawyer whose smug, self-assured
world is shattered when he declines to save a drowning woman.
2. Transcript of March 25, 1999 Press Conference by Secretary General, Dr. Javier
Solana and SACEUR, Gen. Wesley Clark (last modified April 25, 1999) <httpJ//www.
nato.int/kosovo/press/p990325a.htm> [hereinafter March 25, 1999 Press Conference].
Solana also made the following points concerning the objectives and justifications
for the operation:
[We are determined to continue until we have achieved our objectives: to
20001 HUMANrTARLAN INTERVENTION AT A CROSSROADS 1685
which also involved the use of force on behalf of fundamental
principles, the NATO bombing was not authorized by the United
Nations Security Council, leaving its legal basis unclear. From
the beginning, the NATO Secretary-General was careful to avoid
explicitly invoking a right of humanitarian intervention as the
legal justification for the mission,3 and officials in the United
States and other NATO countries followed suit. At the same
time, NATO leaders made it clear that the moral and political
justification for the mission was humanitarian,4 and no alternative
legal justification has been offered so far.5 Not surprisingly,
halt the violence and to stop further humanitarian catastrophe. Let me
emphasise once again that we have no quarrel with the people of Yugoslavia.
Our actions are directed against the repressive policies of the
Yugoslav government, which is refusing to respect civilized norms of
behaviour in this Europe at the end of the 20th century. The responsibility
for the current crisis rests with President Milosevic. It is up to
him to comply with the demands of the international community.
3. During the March 25 news conference, the Secretary-General stated:
[T]he NATO countries think that this action is perfectly legitimate and it
is within the logic of the UN Security Council and therefore that is why
we are engaged in this operation in order not to wage war against anybody
but to try to stop the war and to guarantee that peace is a reality
for a country that has been suffering from war for many, many years.
4. At the Berlin Summit of the European Union, only days after the NATO
bombing had begun, European leaders defended it in moral, humanitarian, and political
[Tihe Prime Minister [Tony Blair] said the Western alliance was taking
action “for one very simple reason-to damage Serb forces sufficiently to
prevent Milosevic from continuing to perpetuate his vile oppression
against innocent Albanian civilians….. Gerhard Schroder, the German
Chancellor and first German leader to authorise military action since
1945, went on national television saying NATO stood ready “to defend
the common, basic values of freedom, democracy and human rights. We
cannot allow these values to be trampled under foot less than an hour’s
flight from us…. Our determination to end the killing in Kosovo is
beyond doubt.” The French President, Jacques Chirac, said the air attacks
were launched to defend ‘peace on our soil, peace in Europe.”
Stephen Castle & Colin Brown, Serbia Offensive: ‘Barbaric’ Milosevic Must Take the
Blame, INDEP. (London), Mar. 25, 1999, at 2, available in 1999 WL 5990539.
5. As he argued before the U.N. General Assembly that the NATO bombing was
appropriate, President Clinton seemed rather apologetic in noting that “[iun the real
world, principles often collide and tough choices must be made." President William
Jefferson Clinton, Speech to the 54th United Nations General Assembly (Sept. 21,
1999), in FED. NEWS SERV., Sept. 21, 1999, available in LEXIS, News Library, FedWILLIAM
AND MARY LAW REVIEW [Vol. 41:1683
commentators have raised questions concerning the legality of
humanitarian intervention despite NATO's careful attempts to
skirt the issue.
This Essay argues that, under an appropriate and narrowly
defined set of circumstances, acts of forcible humanitarian intervention
can indeed be legal, even without the authorization of
the Security Council. The principal focus, however, is on the
task facing the United States and NATO now that they have
invoked this controversial doctrine.6 Those who rely upon the
right of humanitarian intervention have a responsibility to define
its legal parameters. Indeed, when a vague doctrine can be
invoked by states to justify the use of force, it offers them a
license that is subject to abuse. This justification for the use of
force is inherently threatening to other states, particularly when
those states claiming this license are the most powerful states in
the international community. Without clear legal standards to
limit it, the practice of humanitarian intervention threatens to
undermine the friendly relations among states and could have
an adverse impact upon international peace and security.
This Essay uses the term "humanitarian intervention"7 narrowly
to refer to forcible action by a state on the territory of
eral News Service File. He went on to state:
Even in Kosovo, NATO's actions followed a clear consensus, expressed in
several Security Council resolutions, that the atrocities committed by
Serb forces were unacceptable, that the international community had a
compelling interest in seeing them end. Had we chosen to do nothing in
the face of this brutality, I do not believe we would have strengthened
the United Nations. Instead, we would have risked discrediting everything
it stands for. By acting as we did, we helped to vindicate the
principles and purposes of the U.N. Charter, to give the U.N. the opportunity
it now has to play the central role in shaping Kosovo's future
.... The outcome in Kosovo is hopeful.
6. Although the NATO countries have been reluctant to invoke humanitarian
intervention as a legal justification for their intervention, they have invoked the doctrine
in their political rhetoric. See, e.g., infra notes 25-28 and accompanying text
(discussing the "Clinton Doctrine").
7. Ian Brownlie defined "humanitarian intervention" as the "Threat or use of
armed force by a state, a belligerent community, or an international organization,
with the object of protecting human rights. It must be emphasized that this usage
begs the question of legality and stresses function or objective." Ian Brownlie, Humanitarian
Intervention, in LAW AND CIVIL WAR IN THE MODERN WORLD 217 (John
Norton Moore ed., 1974) [hereinafter LAW AND CIVIL WAR].
2000] HUMANITARIAN INTERVENTION AT A CROSSROADS 1687
another to protect individuals from continuing grave violations
of fundamental human rights.8 Cases in which the Security
Council or local government authorizes the use of force are excluded
from this definition because their legality can be established
independently of any right of humanitarian intervention.9
In most scenarios of humanitarian intervention,0 the territorial
state’s government either is directly responsible for the violations
or has acquiesced in them.”
Although NATO has relied, at least implicitly, upon a right of
humanitarian intervention, serious doubts remain regarding
both the status of this right under international law and the
conditions that would necessarily have to limit it. This confusion
stems from the tension between two key aspects of the post-
World War II international legal order.
A strict prohibition on the use of force was incorporated into
Article 2(4) of the U.N. Charter12 as the cornerstone of its strategy
8. Fernando Tes6n defines humanitarian intervention as “the proportionate
transboundary help, including forcible help, provided by governments to individuals in
another state who are being denied basic human rights and who themselves would be
rationally willing to revolt against their oppressive government.” FERNANDO R. TES6N,
HUMANITARIAN INTERVENTION: AN INQUIRY INTO LAW AND MORALITY 5 (2d ed. 1997).
This definition incorporates much of his test for determining when humanitarian
intervention is legal. See id.
9. Arend and Beck endorse similar criteria, excluding from the scope of humanitarian
intervention any action authorized by the Security Council as well as any
action taken pursuant to the invitation of the territorial state. See ANTHONY CLARK
AREND & ROBERT J. BECK, INTERNATIONAL LAW AND THE USE OF FORCE 128-29
10. An exception would exist where a weak or nonexistent national government,
not complicit in the violations, was unable to stop the violations and yet would not
request any outside assistance.
11. David Scheffer identifies a classical definition of humanitarian intervention,
although he does not endorse it:
The classical definition of “humanitarian intervention” is limited to those
instances in which a nation unilaterally uses military force to intervene
in the territory of another state for the purpose of protecting a sizable
group of indigenous people from life-threatening or otherwise unconscionable
infractions of their human rights that the national government inflicts
or in which it acquiesces.
David J. Scheffer, Toward a Modern Doctrine of Humanitarian Intervention, 23 U.
TOL. L. REV. 253, 264 (1992).
12. “All Members shall refrain in their international relations from the threat or
use of force against the territorial integrity or political independence of any state, or
in any other manner inconsistent with the Purposes of the United Nations.” U.N.
1688 WILLIAM AND MARY LAW REVIEW [Vol. 41:1683
for promoting order and peace in the international system. 13 The
Charter recognizes only two exceptions to this prohibition. The
first is that force may be used in self-defense. 14 The second exception
applies only when a decision of the Security Council
authorizes the use of force to protect or maintain international
peace and security.'5 The prohibition, like other parts of the
Charter, 6 reinforces the sovereign rights of the state. The Charter
also affirms that the United Nations itself lacks the authority
to intervene in the domestic jurisdiction of its members. 17 These
provisions support the view that state sovereignty should preclude
any intrusive international action for the protection of
On the other hand, the Charter also heralds the emergence of
a new international law of human rights that fundamentally
challenges the traditional concept of sovereignty.'8 The Charter
CHARTER art. 2, para. 4.
13. Yoram Dinstein takes note of this overall strategy when he stresses that Article
2(4) of the Charter must be read in conjunction with Article 2(3), which prescribes
that "[aill members shall settle their international disputes by peaceful
means in such a manner that international peace and security, and justice, are not
endangered." YORAM DINSTEIN, WAR, AGGRESSION AND SELF-DEFENCE 85-86 (1994).
14. See U.N. CHARTER art. 51.
15. Chapter VII of the Charter states that, "The Security Council shall determine
the existence of any threat to the peace, breach of the peace, or act of aggression
and shall make recommendations, or decide what measures shall be taken in accordance
with Articles 41 and 42, to maintain or restore international peace and security."
U.N. CHARTER art. 39.
16. See, e.g., U.N. CHARTER art. 2, para. 1 (stating that "[tihe Organization is
based on the principle of the sovereign equality of all its Members").
Nothing contained in the present Charter shall authorize the United
Nations to intervene in matters which are essentially within the domestic
jurisdiction of any state or shall require the Members to submit such
matters to settlement under the present Charter, but this principle shall
not prejudice the application of enforcement measures under Chapter VII.
U.N. CHARTER art. 2, para. 7.
18. Michael Reisman argues that international human rights norms are "constitutive
norms" in that they imply a radical and qualitative change in international law
as a whole. Thus, he sees the need for a process that might be referred to as the
"updating contemporization" or actualization of international norms in light of human
rights norms. W. Michael Reisman, Sovereignty and Human Rights in Contemporary
International Law, 84 AM. J. INTL L. 866, 873 (1990). He also asserts that
"[p]recisely because the human rights norms are constitutive, other norms must be
reinterpreted in their light.” Id.
2000] HUMANITARIAN INTERVENTION AT A CROSSROADS 1689
states that promoting and encouraging respect for human rights
is one of the basic purposes of the United Nations.’9 Based on
this language, human rights have become a matter of international
concern and not merely a question within the domestic
jurisdiction of states. The concept of an international law of
human rights derogates from the absolute concept of state sovereignty
and marks a radical departure from the traditional
“state-centric” view of international law.2°
When the Security Council fails to act to stop a continuing
humanitarian crisis, these two basic pillars of the post-World
War II legal order come into dramatic conflict.21 Humanitarian
19. See U.N. CHARTER preamble; id. art. 1, para. 3; id. art. 55.
20. The development of international law is still deeply constrained by its “statecentric”
According to the prevailing positivist conception of international law, that
law derives its binding force from the consent of sovereign states …
This is one important sense in which international law is centered on
states, or “state-centric.” In addition, international law was traditionally
thought to create rights and obligations only for states. According to this
view international law was a law by and for states, in which the rights
of individuals had no place.
An important step beyond state-centrism is implicit in the idea of an
international law of human rights, since the rights concerned are those of
individuals, or groups of individuals rather than those of states. The very
concept of internationally recognized human rights is in derogation of
state sovereignty, while traditional “state-centric’ approaches to international
law insist upon a very broad definition of state sovereignty and a
formalistic defense of it from any external intrusion. This traditional
concept of international law is inherently inadequate to the task of protecting
the human rights and fundamental freedoms which the UN system
is pledged to promote.
Bartram S. Brown, The Protection of Human Rights in Disintegrating States: A New
Challenge, 68 CHI.-KENT L. REV. 203, 204 (1992).
21. U.N. Secretary-General Kofi Annan has defined the dilemma of humanitarian
intervention in the following terms:
The genocide in Rwanda showed us how terrible the consequences of
inaction can be in the face of mass murder. But this year’s conflict in
Kosovo raised equally important questions about the consequences of
action without international consensus and clear legal authority.
It has cast in stark relief the dilemma of so-called “humanitarian
intervention.” On the one hand, is it legitimate for a regional
organisation to use force without a UN mandate? On the other, is it
permissible to let gross and systematic violations of human rights, with
grave humanitarian consequences, continue unchecked? The inability of
the international community to reconcile these two compelling interests in
WILLIAM AND MARY LAW REVIEW [Vol. 41:1683
intervention may be the only way to protect innocent civilian
victims from genocide and ethnic cleansing, but recognition of
such a right threatens to disable the basic peace strategy of the
Charter by undermining the prohibition on the use of force. 2
The question of whether forcible humanitarian intervention can
ever be considered legal without the authorization of the Security
Council therefore remains, and the debate on this issue continues.
Regardless of the status of humanitarian intervention under
current law, the use of force to assist the Kosovar Albanians
has reopened consideration of this issue.
The United States and NATO may not have explicitly claimed
a right of humanitarian intervention, but in bombing Yugoslavia
they have exercised a prerogative that seems both radical and
unprincipled to many outside observers.23 They can and should
remedy this situation by clarifying the limits to the right of
humanitarian intervention, which they have effectively claimed.
Military action to aid the Kosovar Albanians was the right thing
to do, but it is unacceptable that no clear legal justification for
that operation has been offered.
NATO countries, which generally base their governments
upon respect for the rule of law, have in the past been instrumental
in clarifying the rules of international law governing war
and the use of force.24 They should follow that example now by
the case of Kosovo can be viewed only as a tragedy.
Kofi A. Annan, Two Concepts of Sovereignty, ECONOMIST, Sept. 18, 1999, at 49.
22. In commenting on this issue, Louis Henkin has noted:
Violations of human rights are indeed all too common, and if it were
permissible to remedy them by external use of force, there would be no
law to forbid the use of force by almost any state against almost any
other. Human rights, I believe, will have to be vindicated, and other
injustices remedied, by other, peaceful means, not by opening the door to
aggression and destroying the principal advance in international law, the
outlawing of war and the prohibition of force.
Louis HENKiN, How NATIONs BEHAVE: LAW AND FOREIGN POLICY 145 (2d ed. 1979).
23. Speaking about how much of the rest of the world reacted to the Kosovo mission,
one commentator noted: "[For the millions, or billions, who directly or indirectly witnessed
the Kosovo campaign, it provided a terrifying display of what seemed unaccountable
power in the service not of humanity, but merely of the United States and
its allies." William Pfaff, Luck Enabled NATO to Win Its Anti-heroic War, INTL HERALD
TRIB., July 8, 1999, at 8, available in 1999 WL 5112407.
24. See infra notes 93-135 and accompanying text.
2000] HUMANITARIAN INTERVENTION AT A CROSSROADS
leading efforts to codify the law of humanitarian intervention as
it is emerging at the dawn of the twenty-first century.
I. INTERNATIONAL LAW DOCTRINES
A. Emerging Outlines of the Clinton Doctrine
The first basic statement of the policy sometimes referred to
as the “Clinton Doctrine” came in a speech President Clinton
gave to K.F.O.R. troops in Macedonia in June 1999. In, this
speech, President Clinton noted:
So the whole credibility of the principle on which we have
stood our ground and fought in this region for years and
years now-that here, just like in America, just like in Great
Britain, people who come from different racial and ethnic and
religious backgrounds can live together and work together
and do better together if they simply respect each other’s
God-given dignity-and we don’t want our children to grow
up in a 21st century world where innocent civilians can be
hauled off to the slaughter, where children can die en masse,
where young boys of military age can be burned alive, where
young girls can be raped en masse just to intimidate their
families-we don’t want our kids to grow up in a world like
It is not free of danger, it will not be free of difficulty.
There will be some days you wish you were somewhere else.
But never forget if we can do this here, and if we can then
say to the people of the world, whether you live in Africa, or
Central Europe, or any other place, if somebody comes after
innocent civilians and tries to kill them en masse because of
their race, their ethnic background or their religion, and it’s
within our power to stop it, we will stop it.’
The President later confirmed that, in his view, a new
“Clinton Doctrine” was emerging. 6 The scope and applicability
25. President William Jefferson Clinton, Remarks to the KFOR Troops, in U.S.
NEWSWIRE, June 22, 1999, available in LEXIS, News Library, News Group All File.
26. President Clinton seemed to confirm that there was a “Clinton Doctrine” when
asked directly about the matter by Wolf Blitzer of CNN:
Q: Mr. President, some of your aides are now talking about a Clinton
1692 WILLIAM AND MARY LAW REVIEW [Vol. 41:1683
of the doctrine clearly needs further elucidation, but some of
the general outlines have begun to emerge. National Security
Advisor Sandy Berger has identified three criteria for the application
of this new policy: first, there must be genocide or ethnic
cleansing; second, the United States must have the capacity to
act; and third, the United States must have a national interest
at stake." Despite the sweeping language of the President's
initial statement, it is clear that the United States is not committing
itself to intervene in every situation.28 At best, humanidoctrine
in foreign policy in the aftermath of this war against Yugoslavia.
Is there, in your mind, a Clinton doctrine?
THE PRESIDENT: Well, I think there's an important principle here that
I hope will be now upheld in the future and not just by the United
States, not just by NATO, but also by the leading countries of the world,
through the United Nations. And that is that while there may well be a
great deal of ethnic and religious conflict in the world-some of it might
break out into wars-that whether within or beyond the borders of a
country, if the world community has the power to stop it, we ought to
stop genocide and ethnic cleansing. People ought-innocent civilians ought
not to be subject to slaughter because of their religious or ethnic or racial
or tribal heritage.
That is what we did, but took too long in doing, in Bosnia. That is
what we did, and are doing, in Kosovo. That is, frankly, what we failed
to do in Rwanda, where so many died so quickly-and what I hope very
much weql be able to do in Africa, if it ever happens there again.
Interview with Wolf Blitzer of Cable News Network's "Late Edition" in Cologne, 35
WEEKLY COMP. PRES. DOC. 1143, 1146 (June 20, 1999).
27. When National Security Advisor Sandy Berger was asked if there is a Clinton
Doctrine, he replied:
I instinctively resist doctrine, but I think it is a principle that we
have established in Kosovo: There are some activities that governments
engage in, such as genocide or ethnic cleansing, that we cannot ignore.
That doesn't necessarily mean we have a military response in every situation.
We have to have the capacity to act, as the president has indicated.
In Kosovo, we had a national interest as well: 1.8 million refugees
awash in Southeastern Europe is inherently unstable. There's no question
in my mind that it would have destabilized Albania, Macedonia, perhaps
Hungary, and we would have had a wider war in Europe. We would
have been faced with a bigger mess that we would have had to deal
with later this year or next year. Where there is genocide or ethnic
cleansing, where we have the capacity to act as we did here with NATO,
where we have a national interest, I believe we should act.
Doyle McManus, Samuel Berger: In a Domestic President's Foreign Service, a Middleman
Emerges, L.A. TIMES, July 25, 1999, at M3.
28. In his address to the United Nations a few months after the NATO bombing,
President Clinton stressed that states would evaluate their own national interests in
20001 HUMANITARIAN INTERVENTION AT A CROSSROADS 1693
tarian intervention will remain an extraordinary practice to be
used only in special cases.
B. Foreign Policy Doctrines and International Law
The Kosovo bombing has raised not only an issue of U.S. foreign
policy, but also a very fundamental issue of public international
law. The viability of the Clinton Doctrine as a long-term
U.S. policy may be largely determined by domestic political considerations
in this country,9 but the rules of international law
governing humanitarian intervention cannot be determined
unilaterally by the United States or even by all the NATO states
together. That being said, the United States can and should take
the lead in clarifying this area of law for the future.
The idea of a "Clinton Doctrine" can best be appreciated in the
context of the many foreign policy doctrines that preceded it.
The best known of all U.S. foreign policy doctrines is the Monroe
Doctrine. In 1823, U.S. President James Monroe declared to the
European powers that the United States would treat any
deciding when and where to intervene. Specifically, President Clinton commented:
[Tihe way the international community responds will depend upon the
capacity of countries to act and on their perception of their national
interests. NATO acted in Kosovo, for example, to stop a vicious campaign
of ethnic cleansing in a place where we had important interests at stake
and the ability to act collectively. The same consideration brought Nigerian
troops and their partners to Sierra Leone and Australians and
others to East Timor. That is proper so long as we work together, support
each other, and do not abdicate our collective responsibility.
I know that some are troubled that the United States and others
cannot respond to every humanitarian catastrophe in the world. We cannot
do everything everywhere.
Clinton, supra note 5.
29. It remains to be seen whether NATO's Kosovo policy and President Clinton's
words will achieve lasting status even as political doctrine. Public opinion in the
United States will be a major factor because a politically unpopular doctrine will not
be sustainable. In this sense, the results of the next presidential election will be
quite important. If the next U.S. President endorses a version of this doctrine, it
will have a much stronger chance of becoming established. The doctrine, however,
may be finished if the next President rejects it. See, e.g., Francine Kiefer, Clinton
Doctrine': Is It Substance or Spin?, CHRISTIAN SCI. MONITOR, June 28, 1999, § USA,
at 2. Kiefer asks rhetorically, "does this post-cold-war tenet have staying power? Will
it influence future leaders? Or is it, as former Clinton Chief of staff Leon Panetta
worries, just another 'message of the day' churned out by the White House spin
1694 WILLIAM AND MARY LAW REVIEW [Vol. 41:1683
reextension of European colonial power into the Americas as a
threat to the interests of the United States."° This doctrine was
articulated as a statement of U.S. interests and policy and did
not purport to represent a statement of international law, 1 but
it served to shield the newly independent Latin American states
from European interference. The Monroe Doctrine has developed
into a cornerstone of U.S. foreign policy. Almost a century later,
President Theodore Roosevelt's "corollary" to the Monroe Doctrine
claimed for the United States the right to intervene in the
internal affairs of Latin American states. 2 Political doctrines
come and go, and they can serve to promote international law,
as did the Truman Doctrine,33 or to undermine it, as did the
30. In the words of President Monroe:
With the existing colonies or dependencies of any European power we
have not interfered and shall not interfere. But with the Governments
who have declared their independence and maintained it, and whose
independence we have, on great consideration and on just principles,
acknowledged, we could not view any interposition for the purpose of oppressing
them, or controlling in any other manner their destiny, by any
European power in any other light than as the manifestation of an unfriendly
disposition toward the United States.
President James Monroe, Seventh Annual Message to Congress (Dec. 2, 1823), in 2
JAMES D. RICHARDSON, A COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS
31. Far from being law, Hans J. Morgenthau characterized the Monroe Doctrine as
a form of "localized imperialism." HANS MORGENTHAU & KENNETH W. THOMPSON,
POLITICS AMONG NATIONS 70 (6th ed. 1985).
32. See id. at 26.
33. President Truman launched the Truman Doctrine in 1947 when he spoke of
the need to aid free peoples resisting communist subversion:
At the present moment in world history nearly every nation must
choose between alternative ways of life. The choice is too often not a free
One way of life is based upon the will of the majority, and is distinguished
by free institutions, representative government, free elections,
guarantees of individual liberty, freedom of speech and religion, and
freedom from political oppression.
The second way of life is based upon the will of a minority forcibly
imposed upon the majority. It relies upon terror and oppression, a controlled
press and radio, fixed elections, and the suppression of personal
I believe that it must be the policy of the United States to support
free peoples who are resisting attempted subjugation by armed minorities
or by outside pressures.
20001 HUMANITARIAN INTERVENTION AT A CROSSROADS 1695
Roosevelt corollary. Depending upon how clearly and honestly it
is defined, a Clinton Doctrine of humanitarian intervention
might fall into either category.
The counterintervention policy, sometimes referred to as the
"Reagan Doctrine," stopped far short of armed humanitarian
intervention, although it too was based on claims of moral legitimacy.'
Supporters of the Reagan Doctrine were careful to distinguish
it from the discredited Brezhnev Doctrine." Nonethe-
I believe that we must assist free peoples to work out their own
destinies in their own way.
I believe that our help should be primarily through economic and
financial aid which is essential to economic stability and orderly political
The world is not static, and the status quo is not sacred. But we
cannot allow changes in the status quo in violation of the Charter of the
United Nations by such methods as coercion, or by such subterfuges as
political infiltration. In helping free and independent nations to maintain
their freedom, the United States will be giving effect to the principles of
the Charter of the United Nations....
The seeds of totalitarian regimes are nurtured by misery and want.
They spread and grow in the evil soil of poverty and strife. They reach
their full growth when the hope of a people for a better life has died.
We must keep that hope alive.
The free peoples of the world look to us for support in maintaining
If we falter in our leadership, we may endanger the peace of the
world-and we shall surely endanger the welfare of this Nation.
President Harry S. Truman, Special Message to the Congress on Greece and Turkey.
The Truman Doctrine, PUB. PAPERS 176, 178-80 (1963).
34. Jeane Kirkpatrick has described this doctrine as follows:
The Reagan Doctrine, as we understand it, is above all concerned with
the moral legitimacy of U.S. support-including military support-for
insurgencies under certain circumstances: where there are indigenous
opponents to a government that is maintained by force, rather than popular
consent; where such a government depends on arms supplied by the
Soviet Union, the Soviet bloc, or other foreign sources; and where the
people are denied a choice regarding their affiliations and future. The
Reagan Doctrine supports the traditional American doctrine that armed
revolt is justified as a last resort where rights of citizens are systematically
violated. This view is, of course, stated clearly in the Declaration of
Independence, which insists that legitimate government depends on the
consent of the governed.
Jeane J. Kirkpatrick & Allan Gerson, The Reagan Doctrine, Human Rights, and
International Law, in RIGHT V. MIGHT: INTERNATIONAL LAW AND THE USE OF FORCE
20-21 (2d ed. 1991) [hereinafter RIGHT V. MIGHT].
35. Kirkpatrick and Gerson further noted:
1696 WILLIAM AND MARY LAW REVIEW [Vol. 41:1683
less, the legitimacy ,of the Reagan Doctrine was questioned often,
6 especially after the International Court of Justice (ICJ)
condemned U.S. support of the Nicaraguan Contras in the Nicaragua
decision. In that decision, the ICJ concluded, on the basis
of customary international law, 7 that United States military
and paramilitary activities in support of the Contras constituted
an illegal intervention, an illegal use of force, and a violation of
Nicaragua's territorial sovereignty.3 s Presidents generally formu-
The charge that the Reagan Doctrine comes close to being interchangeable
with the Soviet doctrine of national liberation is baseless. The latter
countenances expansion of Soviet power. The Reagan Doctrine permits
assistance in self-defense. The Brezhnev Doctrine preserves foreign influence.
The Reagan Doctrine restores self-government. It countenances
counter-intervention, not intervention. The Reagan Doctrine is not a "rollback,"
but it is a cousin to that idea.
Id. at 31.
36. Louis Henkin made the following critical observations:
Whatever its domestic appeal, the "Reagan policy" as commonly understood,
is untenable in law, and the United States cannot lawfully pursue
it. It may be permissible to intervene by limited force strictly for the
purpose of protecting and liberating hostages when the territorial state is
unable or unwilling to protect or liberate them; it is not permissible to
overthrow a government to that end-as Vietnam did in Cambodia, and
the United States in Grenada .... It is not permissible under the Charter
to use force to impose or secure democracy;, nor does the Charter
contain a Monroe Doctrine exception that would permit the United States
to use force to keep the Western Hemisphere free of communism. In the
Nicaragua case, the International Court of Justice rejected the "Reagan
policy," as it had the Brezhnev Doctrine.
Louis Henkin, The Use of Force: Law and U.S. Policy, in RIGHT V. MIGHT, supra
note 34, at 37-56.
37. Jurisdictional limitations precluded the ICJ from applying the U.N. Charter
and other multilateral treaties. The ICJ therefore based its entire decision upon the
application of customary international law. See Military and Paramilitary Activities
(Nicar. v. U.S.), 1986 I.C.J. 14, 97 (June 27). Some commentators strongly criticized
this jurisdictional aspect of the decision. For example, John Norton Moore commented:
The majority of the Court was also wrong in assuming jurisdiction in
this case. Once the majority admitted that the U.S. multilateral treaty
reservation was applicable, as it did, the ineluctable conclusion was that
the Court had no jurisdiction. The majority's subsequent effort to exercise
jurisdiction in the face of such a manifest absence of jurisdiction is a
classic example of excus de pouvoir, depriving the opinion of any legal
John Norton Moore, The Nicaragua Case and the Deterioration of World Order, 81
AM. J. INTL L. 151, 155 (1987).
38. See Military and Paramilitary Activities, 1986 I.C.J. at 146-47.
20001 HUMANITARIAN INTERVENTION AT A CROSSROADS 1697
late foreign policy doctrines based upon considerations of the national
interest, but when these doctrines involve the use of force,
issues of international law are also relevant.
II. HUMANITARIAN INTERVENTION IN INTERNATIONAL LAW
Debating the legality of humanitarian intervention is difficult
because to do so involves setting priorities between different
rules and principles of international law. The conflict between
the values of state sovereignty and human rights is a familiar
one, but any discussion of humanitarian intervention must also
try to reconcile two types of human rights: those of the victims
one might hope to protect through intervention on the one hand,
and the collective human right of self-determination, which is a
corollary of the principle of nonintervention, on the other. 3 9
When a state asserts its right to be free from foreign intervention,
it may claim, at least in part, to be asserting the collective
right of its people to determine their own political destiny.
A. The Case for a Limited Right of Humanitarian Intervention
The argument for humanitarian intervention assumes that, at
least in appropriate cases, the protection of human rights is a
higher priority than the defense of national sovereignty from
armed intrusion. It follows that when the human rights situation
is serious enough, the proportionate use of armed force to
remedy this problem should be legal. Article 2(4) of the U.N.
Charter prohibits the use of force only "against the territorial
integrity or political independence of any state, or in any other
manner inconsistent with the Purposes of the United Nations."4 °
It therefore can be argued that the Charter allows the use of
force to halt massive violations of human rights, as long as the
prohibited purposes listed are not also involved.4 ' This approach
is particularly attractive from the humanitarian perspective
insofar as it might help to remedy the inability of international
39. See R.J. VINCENT, HUMAN RIGHTS AND INTERNATIONAL RELATIONS 115 (1986).
40. U.N. CHARTER art. 2, para. 4.
41. Dinstein notes that "[there is admittedly strong doctrinal support" for this
approach. DINSTEIN, supra note 13, at 89.
WILLIAM AND MARY LAW REVIEW [Vol. 41:1683
law and institutions to take action against even the most serious
international crimes, such as genocide.
The rules prohibiting genocide and crimes against humanity
are peremptory norms from which, in theory at least, no derogation
is permitted.42 What then is to be done when widespread
violations occur and the territorial state is either unwilling or
unable to prevent them? If diplomatic initiatives fail, military
intervention may be the only way to prevent the continuing
slaughter of innocents.
There is some authority for the view that customary international
law had recognized a right of humanitarian intervention
before the U.N. Charter.43 If so, why should the Charter, which
was supposed to be a step forward for human rights, be allowed
to reduce the options available for the vindication of those
rights? Under the Charter, armed action to protect human rights
could be authorized by decision of the Security Council." This
theoretical possibility, however, is not enough to fulfill the
promise of international human rights. From the humanitarian
perspective, the critical issue is whether the Charter regime provides
an adequate Security Council response to critical humanitarian
The view that the Charter provides an adequate response
suffers from a "credibility gap"45 because the Charter has failed
to deliver on its promise46 to provide a multilateral solution to
42. These prohibitions may have achieved the status of jus cogens, that is, the
most peremptory norms of international law from which no derogation is permitted.
See IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 515 (5th ed. 1998).
43. Tes6n concludes "that there is considerable authority for the proposition that
the right of humanitarian intervention was a rule of customary [international] law
prior to the adoption of the United Nations Charter.” TES6N, supra note 8, at 155;
see also IAN BROWNLIE, INTERNATIONAL LAW AND THE USE OF FORCE BY STATES 338
(1963) (“By the end of the nineteenth century the majority of publicists admitted
that a right of humanitarian intervention . . . existed.”).
44. The Security Council can authorize the use of force if it deems this necessary
to maintain or restore international peace and security. See U.N. CHARTER arts. 39-
45. “[E]vents during the past decade reveal a widening ‘credibility gap’ between
the absolute non-intervention approach to the Charter … and the actual practice of
states.” Richard B. Lillich, Humanitarian Intervention: A Reply to Ian Brownlie and
a Plea for Constructive Alternatives, in LAW AND CIVIL WAR, supra note 7, at 229,
46. U.N. Secretary-General Kofi Annan has criticized the Security Council’s failure
20001 HUMANIrARIAN INTERVENTION AT A CROSSROADS 1699
serious international problems.47 One author, who concedes that
the Charter was intended to prohibit humanitarian intervention,
has argued that the failure of the Charter regime to operate in
practice now justifies a “realistic” interpretation recognizing
humanitarian intervention as an exception to the prohibition on
the use of force.4″
B. The Case Against Humanitarian Intervention
The legal case against recognition of even a conditional legal
right of humanitarian intervention is easily made. It begins with
to uphold its responsibilities under the U.N. Charter and lamented a possible loss of
the United Nation’s credibility. He has stated:
[I]n cases where forceful intervention does become necessary, the
Security Council-the body charged with authorising the use of force
under international law-must be able to rise to the challenge. The
choice must not be between council unity and inaction in the face of
genocide-as in the case of Rwanda-and council division, but regional
action, as in the case of Kosovo. In both cases, the UN should have been
able to find common ground in upholding the principles of the charter,
and acting in defence of our common humanity.
As important as the council’s enforcement power is its deterrent
power, and unless it is able to assert itself collectively where the cause
is just and the means available, its credibility in the eyes of the world
may well suffer. If states bent on criminal behaviour know that frontiers
are not an absolute defence-that the council will take action to halt the
gravest crimes against humanity-then they will not embark on such a
course assuming they can get away with it. The charter requires the
council to be the defender of the “common interest.” Unless it is seen to
be so–in an era of human rights, interdependence and globalisation
-there is a danger that others will seek to take its place.
Annan, supra note 21, at 50.
47. As Wolfgang Friedmann put it, “the inability of the UN, as at present
organised, to act swiftly has handed the power of decision back to the national
states.” WOLFGANG FRIEDMANN, THE CHANGING STRUCTURE OF INTERNATIONAL LAW
The argument against a right of humanitarian intervention is based
primarily on an absolute interpretation of the article 2(4) prohibition on
the use of force and the fear of abusive invocation of the doctrine. The
reality of current state practice, however, has rendered the absolute prohibition
of the Charter meaningless. Thus, there exists a compelling need
for a contemporary and realistic interpretation of article 2(4) based on
state practice that recognizes an exception to the Charter prohibition
when force is required to prevent mass slaughter.
Daniel Wolf, Humanitarian Intervention, 9 MICH. Y.B. INTL LEGAL STUD. 333, 368
WILLIAM AND MARY LAW REVIEW [Vol. 41:1683
the principle of nonintervention,49 which generally bars forcible
intervention by one state upon the territory of another.50 The
right of self-defense and, occasionally, the right of reprisal have
been recognized as exceptions to this prohibition, but claims to a
right of humanitarian intervention have never achieved the
same degree of acceptance by the international community.
The U.N. Charter codifies a new and stricter regime limiting
the use of force. It prohibits the threat or use of force against
the territorial integrity or political independence of states5' and
recognizes only the two exceptions discussed above.52 The Charter
does not recognize any right to use force to protect human
rights," except insofar as this may be decided upon and authorized
by the Security Council. Regional action is no exception to
this rule. Article 53(1) of the Charter specifically provides that
"no enforcement action shall be taken under regional arrangements
or by regional agencies without the authorization of the
Security Council."54 Even the right of reprisal, which had
achieved general acceptance prior to the creation of the United
Nations, 5 has only a doubtful status under the Charter regime.
Then there is the problem of authorizing a multilateral humanitarian
action. The U.N. Charter is based on a universal
vision shared by its founders: a vision of a peaceful and stable
49. As Brownlie notes, "a state using force on the territory of another, without the
license of the effective government, has a burden of justification to discharge, since
it is presumptively a trespasser." Brownlie, supra note 7, at 221.
50. The International Court of Justice has condemned intervention in the following
The Court can only regard the alleged right of intervention as the manifestation
of a policy of force, such as has, in the past, given rise to most
serious abuses and such as cannot, whatever be the present defects in
international organization, find a place in international law .... Between
independent States, respect for territorial sovereignty is an essential
foundation of international relations.
Corfu Channel Case, (United Kingdom v. Albania) 1949 I.C.J. 4, 35 (Apr. 9).
51. See U.N. CHARTER art. 2, para. 4.
52. See supra text accompanying notes 14-15.
53. "[It is extremely doubtful if this form of intervention has survived the express
condemnations of intervention which have occurred in recent times or the general
prohibition of resort to force to be found in the United Nations Charter." BROWNLIE,
supra note 43, at 342 (footnote omitted).
54. U.N. CHARTER art. 53, para. 1.
55. See infra notes 170-80 and accompanying text.
20001 HUMANITARIAN INTERVENTION AT A CROSSROADS 1701
world that they hoped to achieve. The basic peace strategy of the
Charter was to prohibit the use of force by states and to entrust
responsibility for international peace and security to the Security
Council.5" Unfortunately, the Security Council can fulfill this
responsibility only when there is a consensus for action among
its permanent members.
Many commentators and states have rejected the idea that international
law permits humanitarian intervention without the
authorization of the Security Council. As recently as 1986, an
official policy statement of the British Foreign Office found little
evidence of state practice supporting a right of humanitarian
intervention and strong reasons to reject any move towards
recognition of such a right. The British Foreign Office stated:
[The overwhelming majority of contemporary legal opinion
comes down against the existence of a right of humanitarian
intervention, for three main reasons: first, the UN Charter
and the corpus of modem international law do not seem specifically
to incorporate such a right; secondly, state practice
in the past two centuries, and especially since 1945, at best
provides only a handful of genuine cases of humanitarian
intervention, and, on most assessments, none at all; and
finally, on prudential grounds, that the scope for abusing
such a right argues strongly against its creation.... In essence,
therefore, the case against making humanitarian intervention
an exception to the principle of non-intervention is
that its doubtful benefits would be heavily outweighed by its
costs in terms of respect for international law. 8
56. In commenting on the basic strategy of the U.N. Charter, Oscar Schachter has
When the United Nations (UN) Charter was adopted, it was generally
considered to have outlawed war. States accepted the obligation to settle
all disputes by peaceful means and to refrain from the use or threat of
use of force in their international relations. . . . These provisions were
seen by most observers as the heart of the Charter and the most important
principles of contemporary international law.
Oscar Schachter, The Right of States to Use Armed Force, 82 MICH. L. REV. 1620,
57. For example, Ian Brownlie has noted, "[i]t is clear to the present writer that a
jurist asserting a right of forcible humanitarian intervention has a very heavy burden
of proof. Few writers familiar with the modern materials of state practice and
legal opinion on the use of force would support such a view.” Brownlie, supra note
7, at 218.
58. United Kingdom Foreign Policy Document No. 148, 57 BRITIsH Y.B. INTIL L.
1702 WILLIAM AND MARY LAW REVIEW [Vol. 41:1683
Many small, militarily weak, nondemocratic or nonwestern
states are concerned that they might be potential targets of
humanitarian intervention. These states tend to believe that
their sovereignty depends upon a strict interpretation of Article
2(4), which precludes any possibility of humanitarian intervention
without the authorization of the Security Council.59 Humanitarian
intervention is controversial not only due to doubts about
its legality, but also because there are usually so many unanswered
questions concerning the popular will of the local people,
the level of atrocities that warrant intervention, and the possible
ulterior motives of the intervening state.60 Reisman notes that
"[tihe most satisfactory solution to this problem is the creation of
centralized institutions, equipped with decision-making authority
and the capacity to make it effective." Although new and improved
international institutions may not be on the horizon,62
the Security Council has at times acted more assertively and
effectively since the end of the Cold War.6"
614, 619 (1986) [hereinafter Foreign Policy Document No. 1481.
59. As Schachter notes:
Many governments attach importance to the principle that any forcible
incursion into the territory of another State is a derogation of that
State's territorial sovereignty and political independence, irrespective of the
motive for such intervention or its long-term consequences. Accordingly,
they tend to hold to the sweeping prohibition of Article 2(4) against the
use or threat of force except where self-defense or Security Council enforcement
action is involved.
Oscar Schachter, International Law in Theory and Practice: General Course in Public
International Law, in 178 RECUtEIL DES COUPS [COLLECTED COURSES OF THE HAGUE
ACADEMY OF INTERNATIONAL LAW] 8, 148 (1982-V) (1985).
60. See Foreign Policy Document No. 148, supra note 58, at 618-19; Reisman,
supra note 18, at 875.
61. Reisman, supra note 18, at 875.
62. One new institution is on the horizon. A treaty to establish an International
Criminal Court was negotiated in Rome in the summer of 1998. The new court
requires ratification of the treaty by sixty countries. See ROME STATUTE OF THE
INTERNATIONAL CRIMINAL COURT, U.N. Doc. AICONF.183, at 9 (1998) (reissued for
technical reasons) [hereinafter ROME STATUTE].
63. Mary Ellen O’Connell argues that the Security Council has already ended its
experiment with humanitarian intervention:
For a short while, from 1991 until 1994, it appeared that a majority of
Security Council members had re-interpreted the Charter’s order of priorities.
To some, it seemed that the Council had placed such values as
human rights, self-determination, and even democracy above the value of
20001 HUMANITARIAN INTERVENTION AT A CROSSROADS
C. Legal Justifications Given in Practice for Forcible Acts of
Since the U.N. Charter entered into force, there have been
several cases in which armed intervention has been used for
arguably humanitarian purposes.” The intervening power has
not relied legally upon a right of humanitarian intervention in
any of these cases.65 Rather, in most such cases, the intervening
state invoked the right of self-defense and claimed that it provided
the legal authority for the state’s actions. Louis Henkin
cites the Israeli raid on Entebbe airport in Uganda as the
“paradigmatic” case of humanitarian intervention.66 In the context
of that incident, however, the Israeli government avoided
reliance upon this doctrine, arguing instead that the military
operation to protect Israeli nationals was justified as an act of
self-defense.67 Given the general doubts regarding the legality of
humanitarian intervention, a state’s use of force to protect its
own nationals has been easier to justify as an exercise of the
peace through respect for State autonomy. A careful examination does not
support the conclusion that the Security Council accomplished a real reordering.
However, to the extent that Security Council members may
have moved away from the traditional interpretation of the Charter, . . .
they have now returned. The experiment with re-ordering priorities has
ended. Peace through respect for State autonomy has again, for better or
worse, returned as the primary value.
Mary Ellen O’Connell, Regulating the Use of Force in the 21st Century: The Continuing
Importance of State Autonomy, 36 COLUMI. J. TRANSNAT’L L. 473, 473-74, 488-89
(1997) (footnote omitted).
64. Several such cases are catalogued in AREND & BECK, supra note 9, at 114-28,
and TES6N, supra note 8, at 155-200.
65. As one study of this state practice explains:
To be sure, when taking up arms, intervening states have often denounced
large-scale violations of human rights in their target states: for
example in East Pakistan, Kampuchea, Uganda, and Grenada. Nevertheless,
they have almost invariably taken care not to submit explicit “humanitarian
intervention” justifications for their recourses to armed force.
AREND & BECK, supra note 9, at 129.
66. Henkin, supra note 36, at 41.
67. During the Security Council debate relating to the Israeli raid on Entebbe,
representatives of both Israel and the United States argued that because the hostages
were Israeli nationals, Israel’s use of force was justified as an exercise of the right
to self-defense. See Security Council Debate and Draft Resolutions Concerning the
Operation to Rescue Hijacked Hostages at the Entebbe Airport, U.N. Doc. S/PV.1939,
at 51-59 (July 1976), reprinted in 15 I.L.M. 1224, at 1228-31 (Sept. 1976).
1704 WILIM AND MARY LAW REVIEW [Vol. 41:1683
right of self-defense. 68 Even in the rare cases of military intervention
to protect the human rights of nonnationals, such as the
Indian invasion of East Pakistan in 197169 and Tanzania's invasion
of Uganda in 1979,70 the intervening states preferred to rely
upon the more established right of self-defense.71
When the United States, United Kingdom, and France established
"no-fly" zones in northern and southern Iraq, they claimed
that the action was for the humanitarian purpose of protecting
the Kurdish and the Shiite minorities from repression; the doctrine
of humanitarian intervention, however, was never invoked
69. The late Wolfgang Friedmann wrote of "[tihe conditions under which a state
may be entitled, as an aspect of self-defense, to intervene in another state, in order
to protect its nationals from injury.. . ." Wolfgang Friedmann, United States Policy
and the Crisis of International Law, 59 AM. J. INTL L. 857, 867 n.10 (1965). More
recently, Oscar Schachter noted:
Reliance on self-defence as a legal ground for protecting nationals in
emergency situations of peril probably reflects a reluctance to rely solely
on the argument of humanitarian intervention as an exception to Article
2(4) or on the related point that such intervention is not 'against the
territorial integrity or political independence' of the territorial State and
that it is not inconsistent with the Charter.
Schachter, supra note 59, at 148.
69. Fernando Tes6n sees the Indian intervention in East Pakistan as a good example
of humanitarian intervention. He argues that "[hiumanitarian intervention is
the best interpretation we can provide for the Bangladesh war. That reading puts
the incident in its best light under both principles of international law and elementary
moral commitments to human dignity." TES6N, supra note 8, at 208. His claim
that "India did articulate humanitarian reasons as justification for her military action"
focuses only on India's statement of its motive for intervention. Id. at 207. He
cites no evidence that India invoked humanitarian intervention as a legal justification.
70. Thousands of Tanzanian troops invaded Uganda in 1979. This invasion markedly
improved the human rights situation in Uganda. This was accomplished, however,
by completely replacing the unspeakably brutal regime of Idi Amin. This broader
political objective would be difficult to justify under a right of humanitarian intervention.
For more discussion of the need to avoid pretextual interventions, see infra
notes 162-67 and accompanying text.
71. According to the British Foreign Office:
The two most discussed instances of alleged humanitarian intervention
since 1945 are the Indian invasion of Bangladesh in 1971 and Tanzania's
"humanitarian" invasion of Uganda in 1979. But, although both did result
in unquestionable benefits ... [India and Tanzania] were reluctant to
use humanitarian ends to justify their invasion of a neighbour’s territory.
Both preferred to quote the right to self-defence under Article 51.
Foreign Policy Document No. 148, supra note 58, at 619.
2000] HUMANITARIAN INTERVENTION AT A CROSSROADS
as a legal justification. Instead, these three permanent members
of the Security Council argued that the action was legally justified
because it was taken pursuant to Security Council Resolution
688.72 This resolution condemns Iraqi repression as a threat
to international peace and security,7 but no Security Council
resolution ever mentions the “no-fly” zones, and none authorizes
the use of force that those zones entail.
Resolution 688 merely appeals to all member states and humanitarian
organizations to contribute to humanitarian relief
efforts.74 It certainly does not amount to a Security Council authorization
of forcible humanitarian intervention. Nonetheless,
some find an authorization of the use of force in even this weak
language,75 and key members of the Security Council have treated
it as such.76 Nine years later, allied patrols are still destroying
Iraqi fixed-wing planes flying in these zones, as well as Iraqi
radar installations that threaten allied planes within the
zones.77 It strains credibility to argue that this continuing use of
force is justified by Resolution 688. Instead, the United States,
British, and French governments might have been better served
by invoking the concept of humanitarian intervention.78
72. See S.C. Res. 688, U.N. SCOR, 46th Sess., 2982d mtg., U.N. Doc. SIRES/688
(1991), reprinted in RESOLUTIONS AND STATEMENTS OF THE UNITED NATIONS SECURITY
COUNCIL (1946-1992), at 579 (Karel C. Wellens ed., 1993).
73. The resolution uses strong language in stating that the Security Council,
“[clondemns the repression of the Iraqi civilian population in many parts of Iraq,
including most recently in Kurdish populated areas, the consequences of which
threaten international peace and security in the region." Id. operative 1, at 580.
74. The closest Resolution 688 comes to authorizing any action by the allied powers
to aid the Kurds is when it [a]ppeals to all Member States and to all humanitarian
organizations to contribute to these humanitarian relief efforts.” Id. operative
6, at 580 (emphasis omitted).
75. David Scheffer is among those who argue that Resolution 688 established “a
right to interfere on Iraqi territory for humanitarian purposes&.” David J. Scheffer,
Use of Force After the Cold War: Panama, Iraq, and the New World Order, in RIGHT
V. MIGHT, supra note 34, at 145.
76. Soon after the resolution was adopted, British Prime Minister John Major
publicly expressed his humanitarian concern about the treatment of Iraqi Kurds. See
Craig R. Whitney, When Empires Fall, Not Everyone Emerges with a State of His
Own, N.Y. TIMES, Apr. 14, 1991, at E2. Following his lead, the United States and
France joined the United Kingdom in establishing “safe haven” zones of refuge for
the Kurds in northern Iraq. See id.
77. See U.S. Planes Strike AirDefense Sites in Iraq, N.Y. TIMES, Apr. 26, 1999, at A6.
78. David Scheffer has recognized that “[i]ndeed the intervention was the right ac-
WILLIAM AND MARY LAW REVIEW [Vol. 41:1683
The NATO countries have avoided specifics as to the legal
justification for the bombing on behalf of Kosovar Albanians, but
what little they have said is consistent with the cases discussed
immediately above in which other doctrines were invoked. Following
the pattern of interventions such as those in East Pakistan,
the rescue at Entebbe airport, and Tanzania's action to remove
Idi Amin from power in Uganda, statements by some NATO
leaders seem to suggest that the operation might be justified
as a form of extended self-defense." NATO Secretary-General
Solana's suggestion that the NATO action was legal because it
was "within the logic of the U.N. Security Council" ° attempts,
as in the case of the Iraqi "no-fly" zones, to claim a multilateral
authorization by the Security Council where none actually existed.
What does this confusing body of state practice tell us about
the law of humanitarian intervention? Cross-cutting conclusions
can be drawn. This practice strongly suggests that no formal
right of humanitarian intervention has been recognized in the
Charter era. If states believed that international law recognized
such a right, surely they would have invoked it in at least one of
the cases referred to above. Conversely, the frequent practice of
what might be classified as humanitarian intervention, even in
the absence of a recognized right to do so, suggests the need for
a single legal doctrine that could distinguish between the best,
and the worst, cases of forcible humanitarian intervention.
D. Should a Constitutional Theory of Interpretation Apply?
One possible way to reconcile a right of humanitarian intervention
with the terms of the Charter is through a dynamic
"constitutional" approach to its interpretation. The U.N. Charter
tion but for the wrong reason. The Bush administration would have been more honest
if it had invoked the broad view of humanitarian intervention-controversial
though it may be ... ." Scheffer, supra note 75, at 146-47.
79. When Gerhard Schroder, the German chancellor, says NATO is ready "to defend
the common, basic values of freedom, democracy and human rights" and French
President Jaques Chirac describes the operation as one to defend "peace on our soil,
peace in Europe," they seem to be claiming implicitly that the bombing was an
action taken in self-defense. Castle & Brown, supra note 4, at 2.
80. March 25, 1999 Press Conference, supra note 2.
2000] HUMANITARIAN INTERVENTION AT A CROSSROADS
is sometimes said to have a constitutional character, recognized
by Judge Alvarez’s opinion in the Admission case. That opinion
refers to the U.N. Charter as “the constitution of the United
Nations” and as “the constitutional Charter.”"‘ In one notable
passage, Judge Alvarez asserted:
The preparatory work on the constitution of the United Nations
Organization is of but little value. Moreover, the fact
should be stressed that an institution, once established, acquires
a life of its own, independent of the elements which
have given birth to it, and it must develop, not in accordance
with the views of those who created it, but in accordance with
the requirements of international life. 2
As this passage demonstrates, Judge Alvarez argued that, in
appropriate cases, the United Nations should be independent
and dynamic enough to transcend the original intention of the
states that founded it. Presumably, he considered this characteristic
to be exclusive to treaties constituting international institutions.
His opinion makes no secret of his desire to see the
court become involved in the progressive development of international
law,83 and in many ways it goes well beyond generally
accepted doctrines.’ Nonetheless, the argument that constitutive
treaties should be interpreted in a somewhat special manner
is difficult to dismiss.
Judge Alvarez cited and built upon the U.S. Supreme Court’s
well-known formulation of this idea in the 1920 case, Missouri v.
Holland.5 In Holland, Justice Holmes observed that “when we
81. Advisory Opinion on the Competence of the General Assembly for the Admission
of a State to the United Nations, 1950 I.C.J. 4, 68, 70 (Mar. 3).
82. Id. at 68.
83. See id. at 67.
84. Judge Alvarez concluded that “the Constitutional Charter cannot be interpreted
according to strictly legal criterion; another and broader criterion must be employed
and room left, if need be, for political considerations.” Id. at 70; see also id. at 69
(stating that “the traditionally juridical and individualistic conception of law is being
progressively superseded” by a international law that is not only juridical but also
“political, economic, social and psychological”). Judge Alvarez refers to this new law
as the “law of social interdependence,” and this reference bears more than a passing
resemblance to the late Wolfgang Friedmann’s “international law of co-operation.”
FRIEDMANN, supra note 47, at 61-64.
85. 252 U.S. 416 (1920).
WILLIAM AND MARY LAW REVIEW [Vol. 41:1683
are dealing with words that also are a constituent act, like the
Constitution of the United States, we must realize that they
have called into life a being the development of which could not
have been foreseen completely by the most gifted of its begetters."
Inis Claude, Jr., in his discussion of the constitutional problems
of the United Nations, also focused on the need for constitutions
to develop and evolve in response to new realities. Making
careful use of the analogy between the U.S. Constitution and
the U.N. Charter, he concluded that "even though the problem of
constitutional relationships starts as a problem of interpretation,
it ends as a problem of development."" He continued by noting
Sound constitutional interpretation, in international organization
as in national government, balances insistence upon
the legally formulated consensus of the past, awareness of
the political configuration of the present, and consciousness
of the community's requirements and demands for the future.
This is not an easy stunt to perform in the United States,
and it is immensely more difficult in the United Nations.8
To some who reject the application of constitutional concepts
to intergovernmental organizations (IGOs), it is the claim of
"flexibility" that is the most objectionable part of that approach.
The late Soviet jurist, G.I. Tunkin, for example, saw the constitutional
theory in political terms:
The basic idea of this theory, which is oriented toward American
and English constitutional practice, is that the charters
of international organizations as constitutions are "flexible"
documents from whose provisions one may digress in practice,
and this digression will not be a violation, but a modification
of these charters....
... There is no doubt whatever that the constitutional theory
is worked out and propagandized strenuously in the West be-
86. Id. at 433.
87. Ires L. CLAUDE, JR., SWORDS INTO PLOWSHARES: THE PROBLEMS AND PROGRESS
OF INTERNATIONAL ORGANIZATION 167 (Random House 4th ed. 1984) (1956).
88. Id. at 167-68.
20001 HUMANITARIAN INTERVENTION AT A CROSSROADS
cause it is aimed at justifying the numerous violations of the
charters of general international organizations, and above all
of the United Nations, which did and do occur under the
pressure of the imperialist powers. Herein is the political
significance of this theory.89
Tunkin's viewpoint reflects both Soviet ideology and Soviet
resentment of the methods by which the U.N. Security Council
circumvented the Soviet veto during the Korean crisis. More
generally, it reflects the skepticism still shared by many states
concerning loose constitutional interpretation of the U.N. Charter.
Regardless of the approach taken in interpreting the Charter,
the NATO countries need to clarify their views on the law of
humanitarian intervention as it applies to actions such as Operation
Ill. THE NEED TO CLARIFY THE APPLICABLE
A. The Danger of Invoking a Vague Doctrine Permitting the Use
As the preeminent global military power with the capacity to
veto any decision of the Security Council, the United States
could reject all legal restraints upon the use of force. To do so,
however, would not be in the interest of the United States."0
89. G.I. TUNKIN, THEORY OF INTERNATIONAL LAW 322-23 (William E. Butler trans.,
Harv. Univ. Press 1974).
90. Indeed, Louis Henkin has argued:
I dismiss extreme hypothetical options for the United States. In theory,
the United States could decide that the law of the Charter has been a
mistake; that it is not viable; that one cannot subject the decisions of
governments on national security and vital interests to restraints by legal
norms; that it is undesirable-indeed, dangerous-to pretend that there is
law when in fact there is none. Or the United States might decide that
if the law on the use of force is not as it wishes it to be, it would prefer
no law on the subject. Or it might decide that the USSR has not in fact
been restrained by law and that it is therefore not in U.S. interests to
be so restrained.
Whatever some hard-nosed editorial writers may say, scuttling the
law of the Charter is not a viable policy for any U.S. government. Even
if the United States were persuaded that the law is wholly futile and
WILLIAM AND MARY LAW REVIEW [Vol. 41:1683
Certainly, the United States and its allies, as wealthy and powerful
states, have a lot to lose from instability and chaos in the
international system. Notwithstanding this fact, they have implicitly
endorsed a radical new doctrine of humanitarian intervention
by deciding to use armed force to assist the Albanian
Kosovars. Applying a loose, flexible standard to the right of humanitarian
intervention might seem desirable from the humanitarian
perspective because this could make it easier for nations
to act against violations of fundamental human rights around
the world. It would also be a double-edged sword. Indeed, the
danger that states might abuse a right of humanitarian intervention
is the strongest argument against too flexible a rule.91
Any doctrine that opens the door to legally sanctioned military
intervention on the territory of a state and against its government
has the potential to destabilize the entire international
system. A U.S. leadership role in clarifying and codifying the
legal rules applicable to such acts of intervention would serve
the interests of the United States in at least two ways. First, it
would help to avoid the possibility that a vague and opportunistic
policy of humanitarian intervention could easily be turned
against the interests of the United States in the future.9 2 Aldeceptive,
it would not be in U.S. interests to scrap it and, with it, the
fruits of the Second World War and the hopes, aspirations, and efforts of
half a century. Rejecting the Charter in effect would reject Nuremberg,
undermine our national justification in history, and reestablish Adolf
Hitler as no worse than anyone else. Such a move would be condemned
by the whole world. It would serve no good for the United States.
Henkin, supra note 36, at 57-58 (footnotes omitted).
91. "[Flexibility is not necessarily desirable with regard to unilateral humanitarian
intervention because the primary concern is not the inability to act but rather
the fear of pretextual intervention." Michael L. Burton, Note, Legalizing the
Sublegal: A Proposal for Codifying a Doctrine of Unilateral Humanitarian Intervention,
85 GEO. L.J. 417, 420 (1996).
92. Burton's analysis suggests an objective, rather than subjective, approach for
formulating this policy:
Providing an objective standard against which to measure the legitimacy
of a given intervention would deter would-be aggressors and minimize
abuse in two respects. First, codification would impede states' ability to
assert humanitarian rationales for illegitimate intervention. Unlike a
subjective approach that judges the legitimacy of each case in an ad hoe
manner, codification enhances the international community's ability to
discern abuse, thereby making it more difficult for an intervening state
20001 HUMANITARIAN INTERVENTION AT A CROSSROADS 1711
though armed intervention on the territory of the United States
may be unlikely for the moment, the United States could potentially
suffer from the adverse effects of unprincipled acts of intervention
in other countries. Second, giving definition to a realistic
and modem standard of humanitarian intervention would
help to promote trust, friendly relations, and a more secure
future for all states. As a country dedicated to the rule of law, it
is also important for the United States to establish the legitimacy
of its actions in Kosovo. This will be difficult, if not impossible,
until the United States government endorses a clear formulation
defining, and thereby limiting, the right of humanitarian intervention.
B. Historical Precedents: The U.S. Contribution to Codifying the
Laws of War and Peace
An examination of the nineteenth-century diplomatic practice
of the United States supports the view that this country should
lead the way in the codification of the laws of war and peace.
Both the Caroline incident" and the Alabama Claims arbitration9
are cases in which the United States and the United
Kingdom resolved disputes involving issues of sovereignty, national
honor, and war by formulating a mutually agreeable codification
of the applicable rules of international law. The Lieber
Code, formulated unilaterally by the U.S. Army in 1853, was the
first codification of the principles that ultimately became the
foundation of the law of armed conflict.
1. The Caroline Incident
The Caroline incident occurred in the winter of 1837 in the
midst of a crisis in Anglo-American relations. Despite numerous
attempts to settle the matter via treaties, joint commissions, and
arbitration, 95 there was still a lingering disagreement between
to characterize its action as a lawful humanitarian intervention.
Id. at 422-32 (footnotes omitted).
93. See infra notes 95-115 and accompanying text.
94. See infra notes 116-24 and accompanying text.
95. These were established pursuant to the 1783 Jay Treaty and the 1814 Treaty
WILIAM AND MARY LAW REVIEW [Vol. 41:1683
the United States and the United Kingdom concerning the
northern boundary of the United States.96 Tensions persisted
along the border even in places where the boundary was undisputed.
A band of insurgents opposed to the British government
in Canada had been using a ship known as the Caroline to move
men and supplies from the American side of the Niagara river to
an island they had occupied within British territory.97 British
forces attacked the Caroline one evening as it was moored for
the night on the U.S. side of the river.98 Several American citizens
were injured and one was killed before the attacking British
force captured and destroyed the ship."
The United States government protested that the United
Kingdom had illegally used force against the territory and citizens
of the United States. °0 When the British finally acknowledged
the attack, however, they argued that it had been
justified as a legitimate act of self-defense. 1' The United States
strongly disagreed.0 2
The issue could not have been any more sensitive, more closely
linked to national security, or more tied to the sovereign dignity of
the states concerned. Furthermore, it is clear that both the United
States and the United Kingdom considered resolution of the disof
Ghent. See Treaty of Peace Between Great Britain and the United States, Dec.
24, 1814, U.S.-Gr. Brit, 63 Consol. T.S. 421; Definitive Treaty of Peace Between
Great Britain and the United States, Sept. 3, 1783, U.S.-Gr. Brit., 48 Consol. T.S.
96. William I, the king of the Netherlands, and the mutually agreed arbitrator,
ruled as a matter of law in 1831 that the existing treaties between the parties were
insufficient to resolve their border dispute. He then asked the two countries to compromise.
The idea of compromise was flatly rejected by the state of Maine and the
U.S. Senate. Secretary of State Daniel Webster was so troubled by the political impasse
over this issue that he used federal funds to finance a propaganda campaign
in Maine to drum up support for territorial compromise. Even then, that policy was
controversial. See 1 THE PAPERS OF DANIEL WEBSTER: DIPLOMATIC PAPERS, 1841-
1843, at 29-30 (Kenneth E. Shewmaker et al. eds., U. Press of New Eng. 1983)
(1848) [hereinafter DIPLOMATIC PAPERS].
97. See id. at 30-31.
98. See id. at 31.
99. See id.
100. See id.
101. See id. at 32.
102. See id.
20001 HUMANITARIAN INTERVENTION AT A CROSSROADS 1713
pute to be of the highest importance.103 In an attempt to resolve
the dispute, the United States and Britain engaged in a long
exchange of diplomatic correspondence.’ Much of this correspondence
is memorialized in the Diplomatic Papers of Daniel
Webster, who sent letters by or on behalf of the U.S. secretary of
state on this issue.1 0 5 The Diplomatic Papers also include responses
received from the British foreign secretary’s office.0 6
These letters set out each government’s version of the facts surrounding
the Caroline incident and also include very specific
formulations by each government concerning the standards of
international law limiting recourse to the right to use armed
force in self-defense. 10 7
The two governments did not reach agreement as to all the
facts of the incident, and as a result they disagreed as to
whether Britain had violated international law.’ They did
reach agreement, however, as to the applicable international
legal standard.”9 The diplomatic correspondence through which
they reached this agreement constituted the first real codification
of the international law of self-defense.
The two governments agreed that “[riespect for the inviolable
character of the territory of independent nations is the most
essential foundation of civilization."" They were also in agreement
that nations had a right of self-defense, and that the exercise
of this right could, in appropriate cases, constitute a special
103. See id at 33-36 (reprinting letters by Daniel Webster, U.S. Secretary of State,
and Edward Kent, British Foreign Secretary, that emphatically note the importance
of resolving the Caroline dispute).
104. See id. at 33-68 (reprinting the correspondence).
105. See id.
106. See id.
107. See id.
108. See id.
109. See i.
110. Letter from Lord Ashburton, British Minister, to Daniel Webster, U.. Secretary
of State (July 28, 1942), in DIPLOMATIC PAPERS, supra note 96, at 651-52. Lord
Ashburton stated further:
It is useless to strengthen a principle so generally acknowledged by any
appeal to authorities on international law, and you may be assured, Sir,
that Her Majesty's Government set the highest possible value on this
principle, and are sensible of their duty to support it by their conduct
and example for the maintenance of peace and order in the world. ...
WILLIAM AND MARY LAW REVIEW [Vol. 41:1683
exception to the general rule of territorial inviolability."1 It fell
to the United States, as the aggrieved party, to stress the limits
applicable to the self-defense exception invoked by the United
Kingdom. It was in this context that Daniel Webster offered a
formulation of the law of self-defense that the United Kingdom
and the world ultimately accepted:
It is admitted that a just right of self-defence always attaches
to Nations, as well as to individuals, and is equally necessary
for the preservation of both. But the extent of this right is a
question to be judged of by the circumstances of each particular
case; and when its alleged exercise has led to the commission
of hostile acts, within the territory of a Power at
peace, nothing less than a clear and absolute necessity can
afford ground of justification.
... Under these circumstances, and under those immediately
connected with the transaction itself, it will be for Her
Majesty's Government to show ... a necessity of self-defence,
instant, overwhelming, leaving no choice of means, and no
moment for deliberation. It will be for it to show, also, that
the local authorities of Canada,-even supposing the necessity
of the moment authorized them to enter the territories of the
United States at all,--did nothing unreasonable or excessive;
since the act justified by the necessity of self-defence, must
be limited by that necessity, and kept clearly within it." 2
Ultimately, the two governments resolved the diplomatic dispute
by adopting the legal standard set out above," 3 even
111. In his letter to Daniel Webster, Lord Ashburton further recognized: "'Self' defence
is the first law of our nature and it must be recognised by every code which
professes to regulate the condition and relations of man. Upon this modification, if I
may so call it, of the great general principle, we seem also to be agreed .... " Id.
112. Letter from Daniel Webster, U.S. Secretary of State, to Henry Stephen Fox,
Envoy Extraordinary and Minister Plenipotentiary of Her Britannic Majesty (Apr. 24,
1841), in DIPLOMATIC PAPERS, supra note 96, at 58, 62, 67.
113. Daniel Webster noted this agreement in his reply to Lord Ashburton:
The President sees with pleasure that your Lordship fully admits those
great principles of public law, applicable to cases of this kind, which this
government has expressed; and that on your part, as on ours, respect for
the inviolable character of the territory of independent States is the most
essential foundation of civilization. And while it is admitted, on both
2000] HUMANITARIAN INTERVENTION AT A CROSSROADS 1715
though they agreed to disagree as to the application of the law
to the facts of the case.1 4 The effect of this exchange of letters
has been profoundly significant; the formulation “has ever since
been accepted as the classic formulation of the right of selfdefense.
1 5 Indeed, this case provides an outstanding example
of the positive role traditionally played by the United States
government in codifying the law of war and peace.
2. The Alabama Claims Arbitration
The second illustrative case occurred three decades after the
Caroline incident. Despite its declared neutrality with regard to
the Civil War, the United Kingdom allowed British ports to be
used to outfit ships of the Confederate Navy. The most notorious
sides, that there are exceptions to this rule, he is gratified to find that
your Lordship admits that such exceptions must come within the limitations
stated and the terms used in a former communication from this
Department to the British plenipotentiary here. Undoubtedly it is just,
that while it is admitted that exceptions growing out of the great law of
self-defence do exist, those exceptions should be confined to cases in
which the “necessity of self-defence is instant, overwhelming, and leaving
no choice of means, and no moment for deliberation.”
Letter from Daniel Webster, U.S. Secretary of State, to Lord Ashburton, British
Minister (Aug. 6, 1842), in DIPLOMATIC PAPERS, supra note 96, at 669.
114. Daniel Webster memorialized this agreement to disagree in the following manner:
Understanding these principles alike, the difference between the two
Governments is only whether the facts in the case of the “Caroline”
make out a case of such necessity for the purpose of self-defence. Seeing
that the transaction is not recent, having happened in the time of one of
his predecessors; seeing that your Lordship, in the name of your Government,
solemnly declares that no slight or disrespect was intended to
the sovereign authority of the United States; seeing that it is acknowledged
that, whether justifiable or not, there was yet a violation of
the territory of the United States, and that you are instructed to say
that your Government considers that as a most serious occurrence; seeing,
finally, that it is now admitted that an explanation and apology for
this violation was due at the time, the President is content to receive
these acknowledgements and assurances in the conciliatory spirit which
marks your Lordships letter, and will make this subject, as a complaint
of violation of territory, the topic of no further discussion between the
Id. at 669-70.
115. FRIEDIMANN, supra note 47, at 256.
1716 WILLIAM AND MARY LAW REVIEW [Vol. 41:1683
example was the Confederate ship known as the Alabama,
which reportedly sank more than sixty Union ships before it was
finally destroyed. 116 After the Union won the Civil War, the U.S.
government understandably was anxious to hold the United
Kingdom accountable for what was widely perceived to be a very
serious violation of the international law of war and peace. More
surprising is the fact that the United Kingdom was willing both
to endorse a clear codification of the law applicable to the duties
of a neutral power towards belligerents and to submit the Alabama
claims to binding international arbitration. The 1871
Treaty of Washington between the United States and the United
Kingdom did exactly this."7
The sole purpose of the treaty was to settle, via international
arbitration, all U.S. claims against the United Kingdom based
on British support for the Alabama and other Confederate ships.
The treaty established a five-person Tribunal of Arbitration with
arbitrators named by the United States, the United Kingdom,
Italy, Switzerland, and Brazil." 8 The treaty also set out a clear
codification of the international law governing the duties of neutral
states in wartime." 9
116. See WILLiAM R. SLOMANSON, FUNDAMENTAL PERSPECTIVES ON INTERNATIONAL
LAW 327 (1990).
117. See Treaty Between Great Britain and the United States for the Amicable Settlement
of All Causes of Difference Between the Two Countries, May 8, 1871, U.S.-
Gr. Brit., 143 Consol. T.S. 145 [hereinafter 1871 Treaty of Washington].
118. The 1871 Treaty of Washington provided:
Now, in order to remove and adjust all complaints and claims on the
part of The United States, and to provide for the speedy settlement of
such claims, which are not admitted by Her Britannic Majesty’s Government,
the High Contracting Parties agree that all the said claims, growing
out of acts committed by the aforesaid vessels, and generically known
as the Alabama claims, shall be referred to a Tribunal of Arbitration to
be composed of 5 Arbitrators to be appointed in the following manner,
that is to say: one shall be named by Her Britannic Majesty; one shall
be named by the President of The United States; His Majesty the King
of Italy shall be requested to name one; the President of the Swiss Confederation
shall be requested to name one; and His Majesty the Emperor
of Brazil shall be requested to name one.
1871 Treaty of Washington, supra note 117, at 147 (Article I).
119. The following codification of law was set out in Article VI of the 1871 Treaty
In deciding the matters submitted to the Arbitrators they shall be gov20001
HUMANITARIAN INTERVENTION AT A CROSSROADS 1717
In their decision with regard to the Alabama, the arbitrators
concluded that two of the three agreed rules had been violated
and, with regard to the ship Florida, that all three of the rules
had been violated.121 The arbitrators awarded the United States
the then-staggering equivalent of $15,500,000 in gold.121 The
British government could not have been too surprised by this
verdict because it surely knew that it had violated the rules of
neutrality as formulated and agreed to in the Treaty of Washington.
For instance, one unusual clause of the treaty sets out
the nuanced position of the United Kingdom on the issue of the
Her Britannic Majesty has commanded her High Commissioners
and Plenipotentiaries to declare that Her Majesty’s
Government cannot assent to the foregoing rules as a statement
of principles of international law which were in force at
erned by the following 3 rules, which are agreed upon by the High Contracting
Parties as rules to be taken as applicable to the case, and by
such principles of international law not inconsistent therewith as the
Arbitrators shall determine to have been applicable to the case:
A neutral Government is bound-
First. To use due diligence to prevent the fitting out, arming, or
equipping, within its jurisdiction, of any vessel which it has reasonable
ground to believe is intended to cruise or to carry on war against a
Power with which it is at peace; and also to use like diligence to prevent
the departure from its jurisdiction of any vessel intended to cruise or
carry on war as above, such vessel having been specially adapted, in
whole or in part, within such jurisdiction, to warlike use.
Secondly. Not to permit or suffer either belligerent to make use of
its ports or waters as the base of naval operations against the other, or
for the purpose of the renewal or augmentation of military supplies or
arms, or the recruitment of men.
Thirdly. To exercise due diligence in its own ports and waters, and,
as to all persons within its jurisdiction, to prevent any violation of the
foregoing obligations and duties.
Id. at 149 (Article IV).
120. “DECISION AND AWARD Made by the tribunal of arbitration constituted by
virtue of the first article of the treaty concluded at Washington the 8th of May,
1871, between the United States of America and Her Majesty the Queen of the
United Kingdom of Great Britain and Ireland.” 1 JoHN BASSETr MOORE, HISTORY
AND DIGEST OF THE INTERNATIONAL ARBITRATIONS TO WHICH THE UNITED STATES
HAS BEEN A PARTY 653, 656-57 (Wash., D.C., Gov’t Printing Office 1898) (emphasis
121. See id. at 658-59.
WILLIAM AND MARY LAW REVIEW [Vol. 41:1683
the time when the claims mentioned in Article I arose, but
that Her Majesty's Government, in order to evince its desire
of strengthening the friendly relations between the two countries
and of making satisfactory provision for the future,
agrees that, in deciding the questions between the two countries
arising out of those claims, the Arbitrators should assume
that Her Majesty's Government had undertaken to act
upon the principles set forth in these rules. 122
By its own terms, the Treaty of Washington's codification of
the duties of a neutral state under international law set out
rules to be observed in the future, as well as a standard to be
applied to the past conduct of the United Kingdom."~ In this
sense, it was intended to be semi-legislative, as evidenced by the
treaty language stating that, "the High Contracting Parties
agree to observe these rules as between themselves in future,
and to bring them to the knowledge of other maritime Powers
and to invite them to accede to them."'
3. The U.S. Role in Codification of the Laws of War
From the very beginning, the United States has played a
crucial role in the codification and development of international
humanitarian law. 1 5 The Lieber Code, issued in 1863 as Instructions
for the Government of Armies of the United States in the
Field, 6 was the first official attempt to codify the laws and
customs of war. Other countries adopted it almost immediately,
and it has influenced all subsequent developments in this area
of international law. 12 7 Theodor Meron attributes the tremen-
122. 1871 Treaty of Washington, supra note 117, at 149 (Article IV).
123. See id.
124. See id.
125. See Theodor Meron, Francis Lieber's Code and Principles of Humanity, 36
COLUM. J. TRANSNATL L. 269 (1997).
126. Instructions for the Government of Armies of the United States in the Field,
reprinted in THE LAWS OF ARMED CONFLICTS 3 (Dietrich Schindler & Jill Toman
eds., 3d ed. 1988) [hereinafter Lieber Code].
127. The impact of the Lieber Code was both immediate and profound:
[Tihe Lieber Code projected its influence far beyond the ranks of the
United States Army. In 1868 an international commission meeting in St.
Petersburg, Russia, applied the code's principle of military necessity to
20001 HUMANITARIAN INTERVENTION AT A CROSSROADS
dous impact of the Lieber Code to a combination of the Code's
high quality and timing, 128as well as to its foundation of broad
humanitarian principles. 29 Like the rules codified by the United
States in the Caroline incident and prior to the Alabama Claims
arbitration, the Lieber Code was a very conscientious attempt at
codification of universally applicable neutral principles. It was
not a political formulation designed primarily to promote the
self-interest of a single state.
Although it is the thesis of this Essay that the United States
should lead international efforts to codify the international law
of humanitarian intervention, there are ,reasons to hope that
other nations will participate. Because NATO as a whole approved
the bombing of Yugoslavia, all of the NATO member
countries share responsibility for clarifying the international law
of humanitarian intervention. The United States bore the brunt
of the military burden in that bombing mission, and it is the
country most likely to lead missions of humanitarian intervention
in the foreseeable future. Awareness of this special role
could motivate U.S. policymakers to propose standards of humanitarian
intervention designed to leave the U.S. military
maximum leeway.130 This tendency could be counterbalanced if
ban the use of small-caliber explosive bullets because they would cause
"unnecessary suffering." In 1870 the Prussian Government adapted the
code as guidance for its army during the Franco-Prussian War. The code
also formed the basis of the Brussels Declaration of 1874, which in turn
influenced the Hague Regulations on the Laws and Customs of War on
Land of 1899 and 1907, the foundation of the law of land warfare for the
entire twentieth century.
Burrus M. Carnahan, Lincoln, Lieber and the Laws of War: The Origins and Limits
of the Principle of Military Necessity, 92 AM. J. INT'L L. 213, 215 (1998) (footnotes
128. Indeed Meron argues: "Both the Code's high quality and its timing, written
when no other significant compilations of laws and customs of war were available,
can explain its tremendous impact on the codification of international humanitarian
law." Meron, supra note 125, at 278.
129. Meron further noted: "Rather than any one technical or detailed rule, the
Lieber Code's foundation in broad humanitarian principles explains its tremendous
impact both on later multilateral treaties codifying the law of war and on the development
of customary law." Id. at 274.
130. This special role was stressed during the negotiation of the statute for a permanent
International Criminal Court (ICC). Ambassador David Scheffer, the Clinton
Administration's special envoy dealing with war crimes, summed up the unique con-
1720 WiLLIm AND MARY LAW REVIEW [Vol. 41:1683
the NATO allies of the United States, some of whom have already
stressed the need for codification, 13 1 play a prominent role
in that effort.13 2
Some of the best United States codification efforts were made
in conjunction with other western powers. Both the Caroline
incident and theAlabama Claims arbitration required the United
States to formulate its view of international law in the context
of a legal dispute with the United Kingdom. Each country was
cerns of the United States:
[Tihe reality is that the United States is a global military power and
presence . . . . Our military forces are often called upon to engage overseas
in conflict situations, for purposes of humanitarian intervention, to
rescue hostages, to bring out American citizens from threatening environments,
to deal with terrorists. We have to be extremely careful that this
proposal [for an ICC statute) does not limit the capacity of our armed
forces to legitimately operate internationally . .. that it does not open up
opportunities for endless frivolous complaints to be lodged against the
United States as a global military power.
Barbara Crossette, World Criminal Court Having a Painful Birth, N.Y. TImES, Aug.
13, 1997, at A1O.
131. According to recent reports, France played a key role in moderating the drift
towards more aggressive bombing of civilian targets during the NATO mission. As
Dana Priest of the Washington Post reported:
One of the myths of the war is that the leaders of NATO's 19 member
countries ran the air campaign by committee. But that is not the way
the decision-making looked to the alliance's generals and political leaders.
Inside the alliance, it was clear that the important choices-such as
whether to bomb targets that had a largely civilian character-were
made by the leaders of three countries: the United States, Britain and
France. And only one of them, France, regularly played the skeptic.
Dana Priest, Bombing by Committee; France Balked at NATO Targets, WASH. POST,
Sept. 20, 1999, at Al.
132. A brief Reuters wire report summarized the following concerns expressed by
the Italian Foreign Minister:
U.S. intervention in Kosovo compensated for Europe's lack of political and
military power, but NATO's action there raised questions about international
legality, the Italian foreign minister, Lamberto Dini, remarked here
Monday... . Mr. Dini stressed that while the war had been fought for a
just cause, the NATO action raised questions about how to ensure international
legality in the future, questions that Italy will put to the United
Nations next month.... [B]y intervening in the Balkans, NATO had
overridden the old diplomatic principle that sovereignty came first, but a
new code of practice and political discipline had yet to be established.
Italy Questions NATO in Kosovo, INTL HERALD TRIB., Aug. 24, 1999, at 5, available
in LEXIS, News Library, IHT File.
20001 HUMANITARIAN INTERVENTION AT A CROSSROADS
obliged to make its legal case in terms acceptable to a formidable
rival. Even the Lieber Code, which the United States formulated
unilaterally, was in a sense a product of both the United
States and Europe. The Code built upon insights from philosophers
of the European Enlightenment, such as Rousseau, and
upon the European-born Lieber’s experience as a combatant in
the Napoleonic wars.
No state can make its law binding upon the others, and this
fact complicates the task of codifying the law of humanitarian
intervention. The examples of the Caroline incident and the
Alabama Claims arbitration, however, demonstrate how good
faith efforts at codification can come to be accepted as setting
the standard for all states. These two codification efforts were
successful because they were fair and balanced, which made
them acceptable to the international community as a whole.
If the United States and its allies want other states to accept
and acknowledge a right of humanitarian intervention, they
must formulate a standard that is practical and true to principle.
1″ This should be done soon before others abuse this putative
right and offer a more troubling model of how it should work.
The formulation must be sufficiently definite to provide a workable
legal standard and not merely a statement of political doctrine.
1″ Indeed, as the International Court of Justice has observed,
a rule or standard can gain status as part of customary
international law only if it is “of a fundamentally norm-creating
133. ‘[Ain intelligible standard.. . is essential to transforming humanitarian intervention
into an objective rule of international law, one capable of recognition and
enforcement." David J. Bederman, Humanitarian Intervention: An Inquiry into Law
and Morality, 83 AM. J. INTL L. 406, 408 (1989) (book review).
134. "IWlith respect to the terrible uses of force, it is important that, as far as
possible, rules not be subject to concealment and distortion of facts and circumstances
and to self-serving characterizations." Henkin, supra note 36, at 65.
135. North Sea Continental Shelf, 1969 I.C.J. 3, 41-42 (Feb. 20).
WILLIAM AND MARY LAW REVIEW [Vol. 41:1683
IV. THE ELEMENTS OF A LEGAL STANDARD FOR
The specific conditions applicable to legal acts of humanitarian
intervention and the duties and responsibilities of the intervening
state have never been clarified. One aim of this Essay is to
identify some of the relevant principles. A few of these are specifically
required to address the unique problems raised by humanitarian
intervention, while others are derived from the general
practice of states regarding the use of force. Taken together,
these principles must reconcile the shared global interests in
stability, territorial integrity, and sovereignty with the occasional
need for intervention to prevent the most egregious violations of
fundamental human rights.
When the nation-state system emerged three hundred and
fifty years ago, the principle of state sovereignty was at its
core.13 6 Implicit in that sovereignty was the obligation of each
state to refrain from armed military intervention on the territory
of other states. From the start, this obligation was subject to
critical exceptions, including the right of self-defense, the right
of reprisal, and situations of declared war.' The exception most
universally accepted is the right of self-defense, which is subject
to its own conditions. 138 It therefore seems logical to assume that
a right of humanitarian intervention, were it to be recognized,
would at a minimum be subject, mutatis mutandis, to the general
conditions applicable to the right of self-defense. Thus, the conditions
of necessity and proportionality, which limit the right of
self-defense under customary international law, 13 must also
limit the right of humanitarian intervention under international
law. These principles have been most clearly defined in cases of
136. See Krishna Jayaker, Comment, Globalization and the Legitimacy of International
Telecommunications Standard-Setting Organizations, 5 IND. J. GLOBAL LEGAL
STUD. 711, 717 (1998).
137. See David Wippman, Treaty-Based Intervention: Who Can Say No?, 62 U. CHI.
L. REv. 607, 613-15 (1995).
138. See id.
139. "The submission of the exercise of the right of self-defence to the conditions of
necessity and proportionality is a rule of customary international law." On the Legality
of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 226, 245 (July 8).
20001 HUMANITARIAN INTERVENTION AT A CROSSROADS 1723
self-defense or in the exercise of the right of reprisal, and they
must be adapted when applied to humanitarian intervention.
The U.N. Charter imposes a number of additional conditions
upon the exercise of the right of self-defense. These include the
requirement of a prior armed attack,' ° the extinction of that
right once the Security Council has taken measures to maintain
international peace and security,' and the requirement that
states report all acts of self-defense to the Security Council.'42
Some of these additional requirements may also be applicable to
the right of humanitarian intervention.
A. The Role of the Security Council
The U.N. Charter designates the Security Council as the body
with primary responsibility for the maintenance of international
peace and security,' and therefore no discussion of humanitarian
intervention can be complete without considering the essential
role of this body. To the extent that the U.N. Charter anticipates
the need for humanitarian intervention, the matter falls within
the scope of the Security Council's powers under Chapter VII of
the Charter.' If the Security Council determines that acts of
140. See U.N. CHARTER art. 51.
141. See 1d.
142. The Charter's definition of the right to self-defense states:
Nothing in the present Charter shall impair the inherent right of individual
or collective self-defence if an armed attack occurs against a Member
of the United Nations, until the Security Council has taken measures
necessary to maintain international peace and security. Measures taken
by Members in the exercise of this right of self-defence shall be immediately
reported to the Security Council and shall not in any way affect
the authority and responsibility of the Security Council under the present
Charter to take at any time such action as it deems necessary in order
to maintain or restore international peace and security.
143. Article 24(1) of the Charter provides that, "In order to ensure prompt and
effective action by the United Nations, its Members confer on the Security Council
primary responsibility for the maintenance of international peace and security, and
agree that in carrying out its duties under this responsibility the Security Council
acts on their behalf." Id. art. 24, para. 1.
144. See id. art. 39 ("The Security Council shall determine the existence of any
threat to the peace, breach of the peace, or act of aggression and shall make recommendations,
or decide what measures shall be taken in accordance with Articles 41
WILLIAM AND MARY LAW REVIEW [Vol. 41:1683
genocide, crimes against humanity, or other massive violations
of human rights constitute a threat to international peace and
security, it has the power to authorize an armed response. 145 The
right of the Security Council to make this decision is rarely disputed,
although opinions vary about whether any particular
situation truly constitutes a threat to international peace and
security. 146 However, the issue of whether humanitarian intervention
can ever be legal without the authorization of the Security
Council is hotly disputed.
Certainly it would be preferable if the Security Council could
take full responsibility for humanitarian intervention whenever
it might be necessary. Unfortunately, states wielding the veto
privilege sometimes make it impossible for the Security Council
to act, even in cases of serious and widespread abuses.'47 Kosovo
was one such case. The 1994 genocide in Rwanda involved even
more serious abuses, but in that case the Security Council as a
whole lacked the political will to act. 48 The failure of the Security
Council to act in egregious cases such as these is the strongest
argument for a doctrine of humanitarian intervention. It demonstrates
the clear need for some alternative legal basis that could
justify action to prevent widespread and serious violations of the
most fundamental human rights.
Any of the Security Council's five permanent members may
veto decisions of the Security Council.' 49 Until the end of the
Cold War in the early 1990s, this veto power usually was sufficient
to eliminate the possibility of Security Council-sanctioned
use of force, whether for humanitarian intervention or for any
other purpose. The Security Council has reached a consensus on
and 42, to maintain or restore international peace and security.").
145. See id. art. 42 (providing that action may be taken "by air, sea, or land forces
as may be necessary to maintain or restore international peace and security").
146. See Sean D. Murphy, The Security Council, Legitimacy, and the Concept of
Collective Security After the Cold War, 32 COLIUM. J. TRANSNAT'L L. 201, 310-11
147. See Adrienne C. Meisels, Special Agreements in the Post-Cold War Era:
Reality's Conflict with Legal Theory, 64 FORDHAM L. REV. 199, 236 (1995).
148. See John M. Goshko, Killings Elicit Shock, but No U.N. Action, WASH. POST,
July 23, 1996, at A13.
149. See U.N. CHARTER art. 27, para. 3.
20001 HUMANITARIAN INTERVENTION AT A CROSSROADS 1725
a response to massive human rights violations on a number of
occasions over the past decade,"5 but it could not agree on an
effective strategy to protect the Albanian Kosovars."5 ' Despite
the evidence of Serbian atrocities in Kosovo and the failure of all
diplomatic efforts to provide a solution, Russia opposed any
move by the Security Council to intervene militarily.152 When
the Council is paralyzed in this way, it leaves the international
community in a difficult position.
The entire thrust of the international law of human rights as
it has developed over the past fifty years is to guarantee to individuals
the fundamental human rights that were being violated
systematically in Kosovo before the NATO intervention. The
1948 Genocide Convention15 recognizes that racial, religious, or
ethnic groups, such as the Albanian Kosovars, have a right not
to be victimized by those who would deliberately eliminate the
group in whole or in part.1" The inability of the Security Council
150. For example, the Security Council reached consensus on the need to establish
the two international criminal tribunals as a response to reports of massive violations
of human rights in the regions concerned. These responses, however, did not
involve the use of force. See United Nations: Security Council Resolution 955 (1994)
Establishing the International Tribunal for Rwanda, S.C. Res. 955, U.N. SCOR, 49th
Seass., 3453d mtg., U.N. Doc. SIRES/955 (1994), reprinted in 33 I.L.M. 1598 (1994);
United Nations: Security Council Resolution on Establishing an International Tribunal
for the Prosecution of Persons Responsible for Serious Violations of International
Humanitarian Law Committed in the Territory of the Former Yugoslavia, S.C. Res.
827, U.N. SCOR, 48th Sess., 3217th mtg., U.N. Doc. S/RES/827 (1993), reprinted in
32 I.L.M. 1203 (1993).
151. See Jim Hoagland, Kosovo in Limbo, WASH. POST, Nov. 4, 1999, at A35.
152. See Justin Brown, Aiming NATO at Serb Advance, CHRISTIAN ScI. MONITOR,
July 11, 1998, at 1.
153. See Genocide Convention Implementation Act of 1987 (The Proxmire Act), Nov.
4, 1988, art. 1, 102 Stat. 3045; Convention on the Prevention and Punishment of the
Crime of Genocide, Jan. 12, 1951, 78 U.N.T.S. 277 [hereinafter Genocide Convention].
154. The Genocide Convention defines the crime of genocide as follows:
Genocide means any of the following acts committed with intent to destroy,
in whole or in part, a national, ethnical, racial or religious group,
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to
bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
WILLIAM AND MARY LAW REVIEW [Vol. 41:1683
to act in Kosovo left even that minimal promise unfulfilled. The
Genocide Convention obligates signatory parties to "prevent and
punish" genocide.'55 Thus, even if the Security Council fails to
act, those parties are still subject to this general obligation. The
need to permit humanitarian action in extreme emergencies and
the role of the Security Council must therefore be reconciled.
As the discussion above illustrates, it is both anachronistic
and inadequate to maintain, even today, that the Security Council
veto trumps any possibility of intervention on behalf of human
rights. On the other hand, it would be dangerous and
destabilizing for states to claim the right to intervene militarily
on the territory of other states without first bringing the matter
before the Security Council as the competent body.'56 Either
direct Security Council authorization for humanitarian intervention
or the failure of the Security Council to act upon reliable
reports of widespread atrocities should be a minimum legal requirement
for any armed humanitarian intervention.
B. The Requirements of Necessity and Legitimate Purpose
1. A Humanitarian Necessity Must Be Present
In the course of his correspondence with the United Kingdom
regarding the 1837 Caroline incident, Daniel Webster developed
the requirement of necessity, applicable to the right of self-defense
under international law.' The two countries ultimately
agreed to the following standard: "Under these circumstances,
and under those immediately connected with the transaction
itself, it will be for Her Majesty's Government to show.., a
necessity of self-defence, instant, overwhelming, leaving no
choice of means, and no moment for deliberation."15 8
Genocide Convention, supra note 153, art. 1.
155. "The Contracting Parties confirm that genocide, whether committed in time of
peace or in time of war, is a crime under international law which they undertake to
prevent and to punish." Id.
156. See supra note 145 and accompanying text.
157. See supra notes 95-115 and accompanying text.
158. Letter from Daniel Webster to Henry Stephen Fox, supra note 112, at 67.
20001 HUMANITARIAN INTERVENTION AT A CROSSROADS
The Caroline standard of necessity applies only when the
security of a state is at issue.'59 As such, it cannot apply to humanitarian
intervention without some adaptation. However, the
need to prevent serious, widespread violations of human rights
in another state may be perceived as creating a similarly instant
and overwhelming necessity for action.
Defining necessity for purposes of humanitarian intervention
essentially is a matter of drawing the line between those human
rights violations serious enough to justify a response compromising
state sovereignty and those that fall below this threshold.
Just as people can disagree about the relative importance of
human rights on the one hand and peace and stability in the
international system on the other, people might likewise disagree
as to the necessity of humanitarian intervention in any
given case. At a minimum, however, the human rights concerns
involved would need to be quite serious and widespread in order
to approach this critical threshold.
2. Pretextual Interventions Must Not Fall Within the Right
Perhaps the most compelling argument against recognizing a
right of humanitarian intervention is that it might be used as a
pretext for military intervention actually motivated by other,
less noble, objectives. 6 ' If international law is to recognize the
right of humanitarian intervention, it must incorporate appropriate
standards to prevent pretextual abuse.1"6' The basic requirement
of necessity, as discussed above, is a beginning. For
159. See id.
160. As R.J. Vincent notes:
On policy, those who argue against the rightfulness of humanitarian
intervention are inclined to observe that it is a doctrine used by the
great against the small, that it smacks of imperialism, that it disguises
ignoble motives (or, conversely, that it expects too high a standard of
behaviour), that it might encourage counter-intervention, and that it is in
general heedless of consequences.
VINCENT, supra note 39, at 45.
161. See Barry M. Benjamin, Note, Unilateral Humanitarian Intervention: Legalizing
the Use of Force to Prevent Human Rights Atrocities, 16 FORDHAM INT'L L.J. 120,
122 (1992-93) (defining "pretextual interv;ention" as "a nation's use of military force
in a different state for the nation's own gain, not for the protection of human
WILIM AND MARY LAW REVIEW [Vol. 41:1683
that test to be met, there must at least be some compelling
humanitarian objective.'62 Even if the requirement of necessity
is met, what begins as a case of humanitarian intervention could
become something entirely different if the intervening power
abuses the advantage it has gained from intervening. Indeed,
even Louis Henkin, who concludes that states have accepted a
limited right of humanitarian intervention, stresses that this
does not include the right "to topple a government or occupy
its territory even if that were necessary to terminate atrocities
The practice of humanitarian intervention also threatens to
exacerbate inequality in the international system because the
stronger states are in a position to intervene on the territory of
relatively weaker states. These stronger states may hope to gain
territorial, military, political, or economic advantages while
claiming to act in the name of principle. Any legal definition of
humanitarian intervention must somehow address these concerns.
Even in the best case scenario of humanitarian intervention,
an alternative interest, beyond purely humanitarian considerations,
is likely to exist. U.S. officials have been careful to stress
that it will be the policy of the United States to undertake humanitarian
intervention only when it is in its national interest.
This proposition is consistent with the widely held view that
states should always act in their self-interest. 6 ' The motives of
the intervening state are likely to be mixed, even in the best of
cases, and this is why the eventual legal standard must incorporate
safeguards against abuse.
162. See supra notes 159-161 and accompanying text.
163. Henlin, supra note 36, at 42 (footnotes omitted). Henkin notes further that,
"Entebbe was acceptable, but the occupation of Cambodia by Vietnam was not. The
U.S. invasion and occupation of Grenada, even if in fact designed to protect the lives
of U.S. nationals, also was widely challenged." Id. (footnotes omitted).
164. See Michael J. Bazyler, Reexamining the Doctrine of Humanitarian Intervention
in Light of the Atrocities in Kampuchea and Ethiopia, 23 STAN. J. INTL L. 547, 598
(1987) (arguing that establishing clear guidelines for humanitarian intervention
would minimize abuse).
165. See MORGENTHAU & THOMPSON, supra note 31, at 5, 10-11, 13 (arguing that
the only rational foreign policy for a state is one that maximizes the state's power).
20001 HUMANITARIAN INTERVENTION AT A CROSSROADS
C. The Requirement of Proportionality
In addition to defining "necessity," the exchange of letters in
the Caroline incident also clarified that a requirement of proportionality
applies to the right to use force in self-defense.166 A
similar requirement necessarily must limit any right of humanitarian
intervention under international law.16
The issue of proportionality as a limit upon the use of force in
international law has not been adjudicated often, but the arbitrators
in the Naulilaa Arbitration considered it carefully.16 The
Naulilaa Arbitration concerned armed exchanges in southern
Africa during the period from 1914 to 1915.169 When a German
official and two German officers were killed at the Naulilaa
outpost in Portuguese-ruled Angola, German troops, following
orders from the governor of German-ruled Southwest Africa,
retaliated by attacking and destroying several Portuguese outposts.
170 Germany claimed that the doctrine of reprisal justified
its actions.'7 ' The arbitrators concluded, on three separate
grounds, that the German response could not be justified as a
lawful act of reprisal.7" They found no prior illegal act committed
by Portugal that would justify acts of reprisal, no formal
request by the Germans to achieve satisfaction of its claims by
legal means, and an unacceptable lack of proportion between the
166. In one of his correspondences in the Caroline incident, Daniel Webster wrote:
It will be for [the British Government] to show, also, that the local authorities
of Canada,–even supposing the necessity of the moment authorized
them to enter the territories of the United States at all,–did nothing
unreasonable or excessive; since the act justified by the necessity of
self-defence, must be limited by that necessity, and kept clearly within it.
Letter from Daniel Webster to Henry Stephen Fox, supra note 112, at 67.
167. Although Louis Henkin expresses skepticism concerning humanitarian intervention
as a “formal” exception to Article 2(4) of the U.N. Charter, he concludes that
“the legal community has widely accepted that the Charter does not prohibit humanitarian
intervention by use of force strictly limited to what is necessary to save
lives.” Henkin, supra note 36, at 41.
168. See Naulilaa Arbitration (Port. v. F.R.G.), 2 R.IA.A. 1011 (1949).
169. See id. at 1014.
170. See id.
171. Reprisals are acts that would normally be illegal, but that may be legal as a
proportionate and necessary response to a prior illegal act. See id. at 1026.
172. See id. at 1028.
WILLIAM AND MARY LAW REVIEW [Vol. 41:1683
alleged offense and the many brutal acts committed in response.
In discussing the issue of proportionality, the three Swiss
arbitrators began by endorsing a definition of "reprisal" that
directly incorporated the proportionality requirement. 74 They
observed that the "modern," circa 1928, tendency among publicists
was to omit this requirement as an element of reprisal. 75
Speaking of general international law at the end of the first
World War, they concluded that it "certainly tends to limit the
notion of legitimate reprisal and to prohibit excesses."'76
The Naulilaa decision noted that even the Germans conceded
that a proportionality requirement applied to acts of reprisals. 177
The decision suggested, however, that proportionality is a matter
of general international law transcending the issue of reprisals.
At one point the arbitrators observed that, "even if we were
to admit that the law of nations does not require that the reprisal
must correspond approximately to the offense, one would
have to consider as excessive and therefore illicit, any reprisals
out of all proportion to the acts which motivated them."78
Whether we include the proportionality requirement as part of
the definition of humanitarian intervention or apply it as a general
principle of law governing the use of force, there can be
little doubt that it must apply to humanitarian intervention as
well as to the law of self-defense and reprisal.
173. Specifically, the arbitrators made the following finding.
The arbitrators therefore conclude that the German acts of aggression of
October, November and December 1914, at the border with Angola, cannot
be considered to be legitimate reprisals for the incident at Naulilaa
or for earlier acts of the Portuguese authorities, this due to the lack of a
sufficient cause, of a prior attempt to achieve legal satisfaction
("sommation"), and of an acceptable proportion between the alleged offense
and the reprisals carried out.
Id. (author's own translation from French).
174. See id. at 1026.
175. See id.
177. "He who uses reprisals, does naught but to respond to an act contrary to the
law of nations by another act, thus it is evident that the harm caused by the second
must be proportionate to the harm caused by the first." Id. at 1028 n.1 (quoting the
178. Id. at 1028.
2000] HUMANITARIAN INTERVENTION AT A CROSSROADS
D. The Duty to Respect International Humanitarian Law and
International Human Rights
Even if it can be established both that humanitarian intervention
can be legal without Security Council authorization, and
that the human rights situation in Kosovo was an event that
rendered armed intervention appropriate, the question still remains
as to whether the mission was carried out in a legal manner.
The answer to this question depends, in part, upon the
amount of force used and its relationship to the evils that the
intervention sought to remedy. This is the issue of proportionality
Compliance by the intervenor with international humanitarian
law is a separate issue. All states are bound to respect international
human rights and international humanitarian law, and
states invoking the right of humanitarian intervention are no
exception. Indeed, it could be argued that a state that elects to
use force to protect human rights should be held to an especially
high humanitarian standard during the course of that
operation.180 The principal issue of international humanitarian
law raised by the recent NATO military action against Yugoslavia
concerns collateral damage to civilians and their interests.
International humanitarian law has been evolving for over a
century, and only a few of its relevant details can be mentioned
here. First, it bans vicious acts, such as intentionally directing
attacks against civilians or civilian personnel, 1 ‘ and attacking
or bombarding towns, villages, dwellings, or buildings that are
undefended and are not military objectives.”8 2 Second, and more
fundamentally, international humanitarian law requires states
to recognize a distinction between civilians and military targets
and to use weapons capable of distinguishing between them.181
179. See supra notes 168-78 and accompanying text.
180. Cf infra text accompanying notes 197-98 (discussing the intervenor’s responsibility
not to make the situation worse).
181. See ROME STATUTE, supra note 62, art. 8(2)(b)(2) (codifying this rule).
182. See Convention (IV) Respecting the Laws and Customs of War on Land, Oct.
18, 1907, art. 25, 205 Consol. T.S. 277.
183. According to the International Court of Justice:
The cardinal principles contained in the texts constituting the fabric of
humanitarian law are the following. The first is aimed at the protection
1732 WILLIAM AND MARY LAW REVIEW [Vol. 41:1683
This second principle has an American pedigree because, like
much of international humanitarian law, it can be traced back to
the 1863 Lieber Code.'1 Perhaps the clearest expression of this
principle is found in Protocol Additional I to the 1949 Geneva
Conventions, which provides that, "[i]n order to ensure respect
for and protection of the civilian population and civilian objects,
the Parties to the conflict shall at all times distinguish between
the civilian population and combatants and between civilian
objects and military objectives and accordingly shall direct their
operations only against military objectives.”185
U.S. officials have suggested repeatedly that the foregoing
formulation reflects customary international law binding upon
the United States.”8 6 Although the applicability of these prinof
the civilian population and civilian objects and establishes the distinction
between combatants and non-combatants; States must never make
civilians the object of attack and must consequently never use weapons
that are incapable of distinguishing between civilian and military targets.
According to the second principle, it is prohibited to cause unnecessary
suffering to combatants: it is accordingly prohibited to use weapons causing
them such harm or uselessly aggravating their suffering. In application
of that second principle, States do not have unlimited freedom of
choice of means in the weapons they use.
On the Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 226, 257
184. The Lieber Code formulated the principle of distinction in the following terms:
Nevertheless, as civilization has advanced during the last centuries, so
has likewise steadily advanced, especially in war on land, the distinction
between the private individual belonging to a hostile country and the
hostile country itself, with its men in arms. The principle has been more
and more acknowledged that the unarmed citizen is to be spared in person,
property, and honor as much as the exigencies of war will admit.
Lieber Code, supra note 126, art. 22, at 7 (emphases added).
185. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating
to the Protection of Victims of International Armed Conflicts, Dec. 7, 1978, 1125
U.N.T.S. 3, art. 48, at 25, 16 I.L.M. 1391, 1412 (emphases added) [hereinafter Protocol I].
186. The United States is not a party to Protocol I, but Horace Robertson, Jr. has
A number of statements, both official and unofficial, by spokesmen for
the United States Departments of State and Defense, spoken primarily in
the context of an examination of Additional Protocol I and the U.S. decision
not to ratify it, have suggested that the U.S. regards the principles
of distinction and the military objective, as articulated in the Protocol, as
customary international law.
Horace B. Robertson, Jr., The Principle of the Military Objective in the Law of
20001 HUMANITARIAN INTERVENTION AT A CROSSROADS 1733
ciples is undisputed, their application hinges upon the highly
contentious question of what constitutes a legitimate “military
objective.” Protocol I defines the military objective in very narrow
terms, stating that such objectives must, by their “nature,
location, purpose or use,” make an effective contribution to military
action, and that their total or partial destruction, capture or
neutralization must, in the prevailing circumstances, offer a
definite military advantage.18 The military manuals of many
states incorporate this very standard, providing persuasive evidence
that it also is generally applicable as part of customary
international law.’88 This standard suggests that indeed there is
an issue as to whether the NATO bombing of Yugoslavia was
consistent with international humanitarian law.’89
Armed Conflict, in THE LAW OF MILITARY OPERATIONS 197, 204 (Michael N. Schmitt
187. Protocol I, supra note 185, art. 52. The following complete definition of military
objective is set out in Protocol I:
Article 52.-General protection of civilian objects
1. Civilian objects shall not be the object of attack or of reprisals. Civilian
objects are all objects which are not military objectives as defined in
2. Attacks shall be limited strictly to military objectives. In so far as objects
are concerned, military objectives are limited to those objects which
by their nature, location, purpose or use make an effective contribution to
military action and whose total or partial destruction, capture or neutralization,
in the circumstances ruling at the time, offers a definite military
3. In case of doubt whether an object which is normally dedicated to
civilian purposes, such as a place of worship, a house or other dwelling
or a school, is being used to make an effective contribution to military
action, it shall be presumed not to be so used.
Id. (emphases added).
188. For a detailed discussion of this issue, see Robertson, supra note 186, at 204-
07 (citing the inclusion of Additional Protocol I in the military manuals of Germany,
Australia, Canada, and the United States).
189. As one commentator has noted:
By the end of the air campaign, Serb authorities reported at least 2,000
civilian deaths, with many thousands more injured. That is greater than
the number of Albanians killed in Kosovo in the months preceding the
air war. Serb forces committed many more murders under cover of the
air campaign, perhaps over 9,000. But deaths attributable to NATO
bombing are at least as many as the initial killing NATO intervened to
stop. It is hard to dismiss demands for international scrutiny of NATO
tactics as a mere propaganda ploy.
Jeremy Rabkin, A New World Order: The Clinton Doctrine Could Be Turned Against
WILLIAM AND MARY LAW REVIEW [Vol. 41:1683
The Statute of the International Criminal Court formulates
these same principles in a slightly different form. It defines as a
crime the intentional launch of any attack with the knowledge
that the attack will cause collateral damage to civilians or civilian
objects that clearly would be excessive. 9 ° The standard of
what is excessive is to be determined in relation to the concrete
and direct overall military advantage anticipated. 9 '
Applying this standard to the recent NATO bombing mission
raises many questions. For example, the command decision to
restrict the intervention in Yugoslavia to high-altitude bombing
must surely have raised the risk of collateral damage to civilians.
The issue is whether that additional risk was "excessive" in
relation to the military objective of minimizing NATO losses.
The issue is a difficult one, as evidenced by disagreements
among the NATO allies regarding the selection of appropriate
military targets within Serbia.'92
A workable standard of humanitarian intervention for the
future would ideally be built around even more specific rules in
this area. Indeed, when a state elects to intervene abroad for
humanitarian purposes, it should be held to a higher standard
regarding the risk of collateral damage to civilians. By the same
token, U.N. forces should also be held to a higher standard.
Oddly enough, the applicability of international humanitarian
law to U.N. military operations was at one time considered to be
a gray area of the law. U.N. Secretary-General Kofi Annan recently
resolved doubts on this issue by issuing guidelines requiring
all U.N. troops to respect the rules established under the
basic instruments of international humanitarian law.'3 The idea
the U.S., AM. SPECTATOR, Aug. 1999, at 50.
190. The Rome Statute defines the following crime as one subject to prosecution:
Intentionally launching an attack in the knowledge that such attack will
cause incidental loss of life or injury to civilians or damage to civilian
objects or widespread, long-term and severe damage to the natural environment
which would be clearly excessive in relation to the concrete and
direct overall military advantage anticipated.
ROME STATUTE, supra note 62, art. 8(2)(b)(4) (emphases added).
191. See id.
192. According to reports in the Washington Post, even the NATO allies disagreed
about the appropriate line between military and civilian targets during the bombing
mission. See Priest, supra note 131, at Al.
193. According to the guidelines established by U.N. Secretary-General Kofi Annan,
20001 HUMANITARIAN INTERVENTION AT A CROSSROADS
that U.N. military forces could operate outside the reach of international
humanitarian law was based on the argument that
the United Nations itself is not party to any of the basic treaties
that establish international humanitarian law.l"4 This rather
implausible argument ignored the fact that the fundamental
rules of international humanitarian law are also binding as
customary international law. It is true that the United Nations
is not a state, but as the Secretary-General has now recognized,
it would be completely unacceptable for U.N. military forces to
violate fundamental principles of international humanitarian
law. Thus, if anything, it seems logical to hold both the United
Nations, and any state claiming an extraordinary right to use
force for humanitarian intervention, to a higher standard.
E. The Duty Not to Make the Humanitarian Situation Worse
than It Otherwise Would Have Been
Doubts about the net effect of humanitarian intervention form
one of the principal objections to the idea that it ought to be
tolerated legally.'95 To be viable, the legal standards of humanitarian
intervention must address this concern by holding the
intervening state responsible for not making the situation worse
than it would have been. Indeed, the statute of the International
Court of Justice authorizes the International Court of Justice to
consider general principles of law as a possible source of law.196
Consideration of the legal principles applied by states to the
as of August 12, 1999, U.N. "[mlilitary operations shall be directed only against
combatants and military objectives,' any attacks that could result in 'indiscriminate'
damage to civilians are prohibited, and 'Itihe right of the U.N. force to choose methods
and means of combat is not unlimited." Farhan Haq, U.N. to Adhere to Geneva
Conventions, INTER PRESS SERv., Aug. 10, 1999, available in LEXIS, News Library,
194. See Barbara Crossette, Global Rules Now Apply to Peacekeepers, U.N. Chief
Declares, N.Y. TIMES, Aug. 12, 1999, at A8.
195. R.J. Vincent notes that "we may expect among its members two general attitudes
towards the question of intervention .... The first is one of doubt about the
motives of interveners. The second is one of skepticism about any good outcome of
intervention." VINCENT, supra note 39, at 114.
196. See Statute of the International Court of Justice, art. 38, para. 1(c) (visited
Apr. 2,2000) <http'J/www.icj-cij.org/icjwww/ibasidocuments/ibasictexttibasicstatute.htm>
(identifying "the general principles of law recognized by civilized nations" as a source
of international law).
1736 WILLIAM AND MARY LAW REVIEW [Vol. 41:1683
issue of aid to those in peril suggests that a state that elects to
intervene forcibly for humanitarian purposes has a duty not to
make the situation worse than it would have been without its
In their internal law, states take two different approaches to
the responsibilities of the bystander witnessing an individual in
distress. In many civil law countries, such as Germany197 or
France,19 the bystander has a duty to intervene and to assist if
he can do so without undue risk to himself or third parties. In
such cases, a failure to provide assistance is a punishable criminal
act.'99 States, however, are under no such legal duty with
regard to humanitarian intervention. Under the common law
rule, as applied in the United States, a bystander has no duty to
provide aid.20 ° Once a bystander elects to become involved, however,
he can be civilly liable if he makes the situation worse.20 1
197. According to the Penal Code of the Federal Republic of Germany:
Whoever fails to render assistance in case of accident, common danger or
emergency, although such assistance was needed and could have been
expected from him under the circumstances, especially since he could
have, rendered it without placing himself in significant danger and without
violating any important duties, shall be punished by up to one year's
imprisonment or by fine.
THE PENAL CODE OF THE FEDERAL REPUBLIC OF GERMANY § 323(c), at 231 (Joseph
J. Darby trans., The American Series of Foreign Penal Codes No. 28, 1987).
198. See CODE PtNAL (French Penal Code) arts. 223-26, (visited Apr. 2, 2000)
199. The French Penal Code provides for a sentence of up to 5 years imprisonment
for such a failure to provide assistance. See id.
200. The Supreme Court of Arizona succinctly articulated this common law principle:
Since nonfeasance was not actionable except in certain special relationships,
the common law generally refused to impose a duty upon one
person to give aid to another, no matter how serious the peril to the
other and no matter how trifling the burden of coming to the rescue.
Thus, [a] defendant might with impunity sit on the wharf, smoke his
cigarette and refuse to throw his rope to a person drowning just below.
La Raia v. Arizona, 722 P.2d 286, 289 (Ariz. 1986). Prosser and Keeton articulated
this same principle the following way:
Because of this reluctance to countenance “nonfeasance” as a basis of liability,
the law has persistently refused to impose on a stranger the moral
obligation of common humanity to go to the aid of another human being
who is in danger, even if the other is in danger of losing his life.
W. PROSSER & W. KEETON, THE LAW OF TORTS § 56, at 375 (5th ed. 1984).
201. See La Raia, 722 P.2d at 290 n.4 (“Even where the defendant is not re20001
HUMANITARIAN INTERVENTION AT A CROSSROADS 1737
The latter rule roughly corresponds to the situation of a state
electing, on its own authorization, to undertake forcible humanitarian
intervention on the territory of another state.2 Such a
state is not under a duty to intervene, but once it has alffrmatively
acted to do so, it must accept added legal responsibilities.
Some variant of this rule should apply to humanitarian intervention.
It is undoubtedly true that imposing such a responsibility
“operates as a real, and serious, deterrent to the giving of
needed aid.”203 Such a deterrent would be needed, however, to
minimize the potentially destabilizing effects of recognizing a
right of humanitarian intervention.
F. Responsibility for Reconstruction
Since shortly after the bombing of Yugoslavia began, NATO
leaders acknowledged 2″ that the military mission needed to be
supplemented with a program of aid and long-term investment
in the region.”5 Political as well as economic reconstruction will
sponsible for plaintiffs peril, when he assumes to act affirmatively… he assumes
a duty of reasonable care.”); PROSSER & KEETON, supra note 200, at 378 (“If there is
no duty to go to the assistance of a person in diffculty or peril, there is at least a
duty to avoid any affirmative acts which make his situation worse.”).
202. When the Security Council has authorized the use of force under Chapter VII
of the U.N. Charter, a different standard should apply. States using force pursuant
to Security Council authorization should not bear responsibility for the risk of intervening
in the first place.
203. PROSSER & KEETON, supra note 200, at 378.
204. In a press conference held at the end of the NATO bombing campaign, British
Prime Minister Tony Blair used language suggesting NATO’s moral, if not legal
responsibility for reconstruction:
We acknowledge our responsibility in relation to reconstruction …. Now,
we said all the way through that we would help them to reconstruct the
Balkans, to make the Balkans a place of peace and security within Europe
in the future, not a region that’s based on ethnic conflict. Our job is
to make sure that the promises that we made to them during the course
of the conflict we now honor post-conflict.
Remarks Prior to Discussions with Prime Minister Tony Blair of the United Kingdom
and an Exchange with Reporters in Cologne, 35 WEEKLY COMP. PRES. Doc.
1132, 1134 (June 18, 1999).
205. At the same press conference, President Clinton endorsed reconstruction of the
Balkans by stating that “we have to give them a different tomorrow to work for. We
have to not only rebuild Kosovo, we’ve got to rebuild southeastern Europe in a way
that gives them the incentive to work together and to accommodate their differences.”
1738 WILLIAM AND MARY LAW REVIEW [Vol. 41:1683
be sorely needed for years to come. Of course, by recognizing the
need for political and economic reconstruction, these officials did
not mean to suggest that humanitarian intervention entails a
legal responsibility for reconstruction, and there is little legal
basis for arguing that it does. The case for this aid has been
made in terms of the national interest of the intervening NATO
countries rather than in terms of legal obligation, but it is clear
that the NATO countries have assumed an expensive, long-term
commitment to the former Yugoslavia." 6
The future standard of humanitarian intervention might
maintain that such a responsibility exists from the start of any
humanitarian intervention.' 7 This standard would be consistent
with the general principle that any state invoking the right of
humanitarian intervention accepts additional responsibilities as
well as the obligation not to make things worse. It would also
discourage abuse of the right of humanitarian intervention.
The policy of refusing to provide aid for Serbia until Slobodan
Milosevic has been removed from power °' raises yet another set
Id. at 1133. This language is clearly political, building upon the idea that NATO
will be acting in its own interest in reconstructing the Balkans.
206. "[Plursuing a casualty-free war in order to sustain popular opinion still can
produce a heavy butcher's bill, and .. .military intervention, even for humanitarian
purposes, carries its own logic of long-term and expensive commitment." Robert E.
Hunter, Kosovo Has Changed the Rules of the Game; Europe: War Put NATO in the
Thick of the Balkans for the Long Term and Also Put Limits on the Alliance's Future
Sphere of Action, L.A. TIMS, July 7, 1999, at B7.
207. Kofi Annan argues that the entire international community must be committed
[When fighting stops, the international commitment to peace must be
just as strong as was the commitment to war. In this situation, too,
consistency is essential. Just as our commitment to humanitarian action
must be universal if it is to be legitimate, so our commitment to peace
cannot end as soon as there is a ceasefire. The aftermath of war requires
no less skill, no less sacrifice, no fewer resources than the war itself, if
lasting peace is to be secured.
Annan, supra note 21, at 50.
208. President Clinton described the U.S. policy on conditioning aid to Yugoslavia
in the following terms:
At his news conference Friday, Clinton also said Belgrade will get no aid
to repair NATO bomb damage if Milosevic's fellow Serbs continue to
endorse his effort to drive the ethnic Albanian majority out of Kosovo, a
province of Serbia. "I wouldn't give them one red cent for reconstruction,"
2000] HUMANITARIAN INTERVENTION AT A CROSSROADS
of legal issues. This policy attempts to influence the Yugoslav
political process and might itself be seen as a form of illegal intervention.
0 9 On the other hand, the logic of humanitarian intervention
might apply to justify the economic measures maintained
against the Milosevic regime.2 10 If forcible humanitarian
intervention in Kosovo was justified, does this necessarily mean
that economic coercion against all of Yugoslavia is now justified,
even if necessary to remove the leaders responsible for the humanitarian
catastrophe? Ultimately, the law of humanitarian
intervention should develop answers to these difficult issues as
well as to others relating to the need for reconstruction.
The legal regime applicable to humanitarian intervention is
desperately in need of clarification. The NATO operation on
behalf of the Kosovar Albanians seems to represent a prima
facie violation of the U.N. Charter’s rules on the use of force.
Yet, there are compelling moral, historical, and policy arguments
for the proposition that humanitarian intervention, subject to
the proper conditions, should be a special exception to those
rules.2 1 1
The Serbs are “going to have to come to grips with what Mr.
Milosevic ordered in Kosovo” and “they’re going to have to get out of
“And then, they’re going to have to decide whether they support his
leadership or not, whether they think its OK that all those tens of thousands
of people were killed. And all those hundreds of thousands of people
were run out of their homes and all those little girls were raped and
all those little boys were murdered,” Clinton snapped.
“They’re going to have to decide if they think that is OK.”
Robert Burns, Clinton to Serbs: Rethink Milosevic, ASSOCIATED PRESS, June 26, 1999,
available in 1999 WL 17818097.
209. There is some disagreement as to whether purely economic acts can constitute
illegal intervention. For a discussion of these issues, see BARTRAM S. BROWN, THE
UNITED STATES AND THE POLITICIZATION OF THE WORLD BAN: ISSUES OF INTERNATIONAL
LAW AND POLICY 59-86 (1992).
210. See id. at 81-82.
211. Although he favors Security Council action, Kofi Annan endorses the idea that
a new international norm of humanitarian intervention is developing and that this is
indeed a good thing:
This developing international norm in favour of intervention to protect
1740 WILLIAM AND MARY LAW REVIEW [Vol. 41:1683
It is far from clear that there was anything illegal about
NATO's Kosovo mission. Because of the underdeveloped state of
the law, however, it is also far from clear that the operation was
conducted in an entirely legal manner. This situation of legal indeterminacy
is troubling, destabilizing, and ultimately inimical to
U.S. interests. Even some NATO countries feel sufficiently threatened
by the "hegemony of a hyperpower"212 to have called for
strengthened international norms as a check upon U.S. power."
This reaction has not been limited to any one NATO country 4
and has been exacerbated by the impressive display of U.S. military
power in the course of the NATO mission.
As the world's last remaining superpower, it is inevitable that
the United States will face some resentment from other states.215
civilians from wholesale slaughter will no doubt continue to pose profound
challenges to the international community. In some quarters it will
arouse distrust, skepticism, even hostility. But I believe on balance we
should welcome it. Why? Because, despite all the difficulties of putting it
into practice, it does show that humankind today is less willing than in
the past to tolerate suffering in its midst, and more willing to do something
Annan, supra note 21, at 50.
212. French Foreign Minister Hubert Vedrine described the United States as a
"'hyperpower' . . . 'a country that is dominant or predominant in all categories." To
Paris, U.S. Looks Like a 'Hyperpower', INT'L HERALD TRIB., Feb. 5, 1999, at 5, available
in LEXIS, News Library, IHT File. He suggested that this domination could
best be resisted "[t]hrough steady and persevering work in favor of real
multilateralism against unilateralism, for balanced multipolarism against unipolarism,
for cultural diversity against uniformity.” Id.
213. See Andrew Borowiec, France Seeks Big U.N. Role on Iraq; Urges Alternative
to ‘Brutal Force’, WASH. TIMES, Dec. 23, 1998, at A14, available in 1998 WL
214. The Prime Minister of Italy, Lamberto Dini, recently expressed his concern
that the precedent of Kosovo could strengthen U.S. hegemony:
[I]n referring to NATO’s decision to unleash war in Kosovo against Yugoslavia
without the approval of the United Nations, Italian foreign minister
Lamberto Dini said Monday that NATO’s self-investiture during the
war could not become a rule for the future. Speaking at a meeting on
friendship among the peoples held in Italy’s resort town of Rimini, Dini
said, “the U.S. itself should be more clear of what it can and cannot do.”
He said the defense of a right should be separated from “hegemonic
aspirations” in the future ….
Dini: Nato’s Involvement in Kosovo War Not a Rule for the Future, XINHUA NEWS
AGENCY, Aug. 23, 1999, available in LEXIS, News Library, All News Group File.
215. Indeed, a recent international reporter commented: “A great deal of lingering
20001 HUMANrIARIAN INTERVENTION AT A CROSSROADS
The lack of a clear legal standard limiting military intervention
in the future, however, can only add fuel to the fire. By moving
with its allies to formulate a principled codification of the law of
humanitarian intervention, the United States could allay fears
of “hyperpower hegemony,” gain renewed respect for dedication
to the rule of law,216 and, most importantly, give hope of deliverance
to those in danger of extermination by a genocidal government
anti-Americanism in Europe can be attributed to [an] inferiority complex.” Dominique
Moisi, A Self-Confident Europe Is America’s Best Partner, INVL HERALD TRIB., Jan.
16, 1999, at 8, available in 1999 WL 5109182.
216. In agreeing to a future international standard, the United States and its
NATO allies need not accept any additional legal responsibility for the Kosovo bombing.
Following the example of the United Kingdom in the Alabama case, they could
acknowledge the need for a future standard and then agree to one without conceding
its retroactive applicability. See supra note 122 and accompanying text